The refrain from tough-as-nails Republicans on the Christmas Day bomber these days is this: the Obama administration erred in not classifying Umar Abdulmutallab as an enemy combatant and subjecting him to the military commissions process. Yesterday, Rep. Peter Hokestra said that the government should "now consistently charge these folks in the military court." Doing so would allegedly allow interrogators greater latitude to extract information from a suspect, deprive him of a quick legal assistance, and more assuredly prelude the possibility of these bad guys being found not guilty in a federal court.
But the facts, such as they are, show these arguments to be weak.
Had Abdulmutallab been charged in a military commission, he would have been provided access, almost immediately, to an attorney -- perhaps even more quickly than he was afforded the same privilege by the FBI. The government says that Abdulmuttalab stopped cooperating with authorities BEFORE he saw an attorney. There is no reason to believe that he would have continued cooperating if he had been charged in a military commission or somehow held under the laws of war. (Bill Kristol said on Fox that there was a "failure to get information that we might have gotten." How's that?)
Tougher interrogations? Maybe in the early years of the Bush administration, but the military increasingly is using techniques that the FBI successfully used -- and both civilian and military interrogators are essentially bound by the same restrictions on the use of enhanced techniques now.
Following the Supreme Court's decision in Boumediene, terror suspects detained under the laws of war may challenge their detention in federal courts by asking a judge to review their habeas corpus status. Given the willingness of judges to grant habeus because they'll throw out evidence collected from rough interrogations, one assumes that military interrogators would be just as gentle as FBI agents would.
So leaving aside the facts, what about the argument about symbolism? Why hasn't Obama declared war against al Qaeda? He has. During his inauguration, in his Af-Pak speech in March, in his national security speech in May ("We are indeed at war with al Qaeda and its affiliates") and so on. Additionally, to the disappointment of the ACLU and other civil liberties groups, the administration has embraced the concept of military commissions and has even acknowledged that it will probably have to hold a number of Guantanamo detainees indefinitely, without much legal recourse. He's also stepped up the use of Predator drone strikes in Pakistan, much to the dismay of scholars of the laws of war, who believe that conduct to be illegal.
Not to say that all Republican criticisms lack plausibility. Even within the administration, some heads were scratched when the president called Abdulmuttalab an "isolated extremist," disregarding the mountain of evidence that he was dispatched by al Qaeda on the Arabian Peninsula. Whether that was simply a rhetorical mistake or indicative of a broader belief about the nature of the threat is something that the administration, quite rightly, is grappling with.
What's left? More symbolism. Though mostly chest-thumping, anger-ventilating vestiges of a counterterrorism strategy that has been discredited, it is now legally dubious (according to the Supreme Court), unpopular, and has no particular aim -- other than to regularize the notion that because America is under a constant threat of attack (widely acknowledged), it should, simply for the sake of strength-projection and face-saving, assume facts not in evidence, exaggerate the consequences of an act of terrorism, disregard complexity, and maintain a false dichotomy that is no longer legally sustainable.