For example, Krauthammer is correct when he says that "Abdulmutallab is now in control" of certain aspects of his destiny but wrong when he complains about the "absurdity" of that proposition. All criminal defendants, whether they are regular civilian suspects or enemy combatants, exercise a measure of control over the proceedings of which they are apart. They can cooperate or not cooperate, testify or not testify, plead guilty or fight the charges, or some combination of all of the above. This "control" we allow to the accused, or just the suspected, is simply the price we pay as a country for having a rule of law, and a presumption of innocence, and protections for individuals against the might of government. My colleague Marc Ambinder wrote smartly about this earlier in the week.
Krauthammer notes, "What Abdulmutallab lost in flying privileges (once his visa was belatedly revoked) he gained in Miranda rights." Having followed virtually every development on this topic since September 11, 2001, I am not yet convinced that genuine Al Qaeda operatives really care, one way or the other, about having Miranda rights. Having the right to a lawyer and a right to remain silent didn't stop Zacarias Moussaoui from practically begging his federal jury to sentence him to death for the itty-bitty role he played in the 9/11 conspiracy. Word has it, too, that Abdulmutallab may have been intensely questioned before he was Mirandized and that he may have been still talking afterward.
And, with or without a Miranda right, Khalid Sheikh Mohammed, the purported Big Daddy himself, showed no reticence whatsoever to speak his mind during his aborted military case. "All American constitutions are evil, they are not the laws of God," Mohammed is reported to have said at his military tribunal in Gitmo. Maybe you can blame that attitude to the water-boarding. Maybe not.
Second, Krauthammer was right to compare the Abdulmutallab case with the case of Richard Reid, the shoe bomber, almost exactly eight years ago. But he is wrong to characterize the Reid case as a "mistake." George W. Bush and then-Attorney General John Ashcroft, in a rare moment of practicality and sense, charged Reid in federal court in Boston. Reid quickly pleaded guilty. He was quickly and authoritatively sentenced and the world saw him for the punk he is. If the White House in 2001 or 2002 instead had classified Reid as an "enemy combatant" and diverted him to the Gitmo Gulag, he'd still be languishing today in legal limbo like the rest of the Gitmo prisoners.
Instead, because the feds back then did the right thing and treated him like a common criminal, Reid now languishes with a life sentence at the Supermax facility in Colorado where, I predict, he'll soon be joined by Abdulmutallab. Perhaps our nation's continuing "enhanced interrogation tactics" might have generated usable intelligence information from the suspect prior to his being turned over to civilian custody. Perhaps not. Perhaps, as we have seen, the FBI is just as good or better about getting information from these guys as is the CIA.
Finally, Krauthammer suggests that there will be no less recruiting by Al Qaeda once the Administration closes the prison facility at Gitmo. As proof, he cites Ayman Al-Zawahiri's repeated use of the name "Andulsia" to reference Iberia, "lost by the Muslims to Christendom in 1492." Great history, there. But closing Gitmo is certainly not going to help Al Qaeda's recruiting efforts. And it's certainly going to reestablish our own commitment to due process and habeas corpus and other legal mechanisms designed to protect against tyranny. Besides, doesn't anyone else get the notion that when we treat Al Qaeda like common criminals, and not super-warriors, we send precisely the right message to the rest of the world?
Krauthammer calls this Obama policy naive and calls for more cynicism. I call it fair and call only for a clearer recollection of all that has come before us in terrorism law since the Twin Towers fell.