But now the administration is painting a different picture. Both Blair and FBI Director Robert Mueller presented the decision to Mirandize Abdulmutallab as an ad-hoc one made by the FBI special agent on the scene at the Detroit airport when Northwest Airlines Flight 253 landed with the suspect subdued. But maybe not, reports the Los Angeles Times:

The decision to advise the accused Christmas Day attacker of his right to remain silent was made after teleconferences involving at least four government agencies — and only after Umar Farouk Abdulmutallab had stopped talking to authorities, according to knowledgeable law enforcement officials.

Among those involved in the hastily called teleconferences were representatives from the Justice Department and the FBI, along with officials from the State Department and the CIA.

“It was a [law enforcement] community-wide conference, and they discussed a number of things,” one source said on condition of anonymity. “That’s when decisions were made on which course was going to proceed, to Mirandize him or otherwise.”

Whether or not that’s true, it’s consistent with the timeline of Blair’s and Mueller’s testimony — that the interrogation proceeded along the FBI’s timetable, except the agents later put a conference call together to strategize. Blair wasn’t in on it if so. But that says more about Blair’s position in the Obama administration than it does about the administration itself.

Again, this may not be true. Attorney General Eric Holder will undoubtedly have to answer questions about it from Congress.

Director of National Intelligence Dennis Blair (James Berglie/ZUMA Press)

If President Obama didn’t have enough headaches after the loss of the Democrats’ filibuster-proof Senate majority on Tuesday night, another one emerged for him at a Senate hearing on Wednesday morning: Dennis Blair, the director of national intelligence.

During the first in a battery of congressional hearings about the failed bombing of Northwest Airlines flight 253, Blair, the nation’s top intelligence official, declined to endorse the Obama administration’s decision to try would-be bomber Umar Farouk Abdulmutallab in federal civilian court — a decision that Republicans and conservatives have subjected to weeks of criticism. Asked by Sen. John McCain (R-Ariz.) whether Abdulmutallab should be tried by a civilian court or a military commission, Blair replied, “I’m not ready to offer an opinion on that in open session.”

[Security1] Blair told the Senate Homeland Security and Governmental Affairs Committee that the administration should have used its newly created interrogation team, known as the High-Value Detainee Interrogation Unit or HIG, to extract information from Abdulmutallab. Republican lawmakers have suggested, without offering any specific evidence, that the U.S. lost access to valuable information from the al-Qaeda-tied Abdulmutallab after Mirandizing him and ultimately indicting him. Law-enforcement officials and Obama appointees, for their part, insist, also without offering specific evidence, that hours of FBI interrogations of Abdulmutallab yielded valuable intelligence.

“We did not invoke the HIG,” Blair said. “In this instance, we should have.” The HIG — which reports to the FBI and the National Security Council, not the director of national intelligence — has been previously described by knowledgeable administration officials as a tool for use almost exclusively in the interrogation of foreign-held detainees. Sen. John Ensign (R-Nev.) quickly pounced on Blair’s statement, calling it a “guarantee” from the administration to opt out of the civilian criminal justice system in future cases of foreign citizens apprehended on U.S. soil in connection to terrorism, as many Republicans desire.

A senior administration official, speaking on background, contradicted Blair, saying the HIG is not yet operational — and, in any case, is supposed to be used for terrorism suspects detained overseas. “This is very basic, very clear,” the official said, expressing surprise that Blair would say the HIG should have been involved.

Blair — who is expected to appear before a classified hearing Thursday morning in the Senate intelligence committee — suggested that Abdulmutallab’s Christmas-time apprehension after Flight 253 landed in Detroit was more ad hoc and chaotic than the Obama administration has portrayed. Joined by Janet Napolitano, the secretary of Homeland Security and Michael Leiter, the director of the National Counterterrorism Center, Blair said he was not consulted on the decision to charge Abdulmutallab. In a separate, simultaneous hearing in the Senate Judiciary Committee, FBI Director Robert Mueller said he was also out of the loop. Shortly after the incident, Napolitano famously said “the system worked” after Abdulmutallab was subdued on Flight 253.

“We need to make those decisions more carefully,” Blair said about not using the HIG for Abdulmutallab and the decision to charge him in federal court. “It was made on the scene.” Asked later to clarify who was responsible for deciding to Mirandize the would-be bomber, Blair replied, “The FBI agent in charge on the scene.” Mueller stated at his own hearing that “the decision to arrest [Abdulmutallab] and put him in criminal courts” was made by FBI “agents on the ground.” Sen. Jeff Sessions (R-Ala.) expressed surprise that the decision to prosecute Abdulmutallab did not come from a more senior official.

Spokespeople for the Justice Department and the White House declined to comment on Blair’s remarks to the Senate panel, referring questions back to Blair’s office. But hours after the hearing concluded, Blair issued a statement conceding that the HIG would not have been a viable interrogation option in this case.

“My remarks today before the Senate Committee on Homeland Security and Governmental Affairs have been misconstrued,” Blair said in the statement. “The FBI interrogated Umar Farouk Abdulmutallab when they took him into custody. They received important intelligence at that time, drawing on the FBI’s expertise in interrogation that will be available in the HIG once it is fully operational.”

Blair, a retired four-star admiral and former commander of U.S. military forces in the Pacific, has had a rocky tenure as director of national intelligence since Obama appointed him to the post last January. Last year, he tussled with the CIA director, Leon Panetta — technically Blair’s subordinate — over control of the CIA’s top intelligence officers in foreign stations. Blair lost that dispute, which had to be mediated by the White House. At Wednesday’s hearing, Blair occasionally appeared lost, misunderstanding senators’ questions and saying he wished intelligence officials leaking to the press would “shut the hell up.”

But Blair did not give cover to another line of attack from Republican senators: that Abdulmutallab should be tortured. Ensign asked Blair why it made sense to restrict interrogations of terrorism suspects to the techniques listed in the mostly-Geneva-Conventions-compliant Army Field Manual on Interrogations, as Obama insisted in one of the first executive orders of his presidency. Blair strongly strongly defended the decision. “We looked at that quite carefully,” Blair said. “We do not know if the same information obtained through extra-judicial measures [could not] have been obtained without them.”

Some civil libertarians were concerned by the hearing’s occasional tendency to relitigate the principles of trying terrorism detainees in civilian courts and treating them humanely. “The senators’ claim that the government had the right to seize [Abdulmutallab] and turn him over to the military for secret imprisonment and harsh interrogation is the same radical and discredited claim that President Bush made about his authority to seize anyone, including citizens, found in the U.S. and hold them without charge,” said Kate Martin, director of the Center for National Security Studies. “The government went down that path, it flouted the rule of law and eventually had to be fixed by bringing criminal prosecutions.”

Additionally, some counterterrorism officials and outside experts have pushed back recently against the GOP talking point that Mirandization inhibits interrogation. According to a paper released Wednesday by the Center for American Progress’s Ken Gude, a detainee’s access to legal counsel is also not an obstacle to intelligence collection. “Terrorist suspects have given what U.S. officials call ‘an intelligence goldmine’ after meeting with attorneys,” Gude writes.

In the Senate Judiciary Committee, FBI Director Mueller backed up that proposition. “We’ve had a number of cases in which through the process — the criminal justice process of the United States — individuals have decided to cooperate and provided tremendous intelligence,” Mueller said. “That is not to say that there may not be other ways of obtaining that intelligence. But, yes, in answer to your question, the criminal justice system has been a — a fount of intelligence in the years since September 11th.”

Update: This piece has been edited for clarity.

FEINGOLD:
OK, thank you.

Director Mueller, we’ve heard criticism this morning for the decision to try Abdulmutallab in federal court. And I’m, of course, a little mystified by this reaction, given the similarity of this case to the attempt by Richard Reid, who was prosecuted in federal court by the prior administration, now serving a life sentence. Some have argued the decision has compromised our ability to obtain useful intelligence.

But as I understand it and as Senator Feinstein touched on, there are quite a few examples of people who have been charged with terrorism-related crimes in federal court and cooperated with the U.S. government. Do you see any reason to treat this case differently from the Richard Reid case? And has it been your experience that alleged terrorists charged with crimes in federal court often cooperate with the government and provide useful intelligence?

MUELLER:
Well, in direct answer to the question, we’ve had a number of cases in which through the process — the criminal justice process of the United States, individuals have decided to cooperate and provided tremendous intelligence. That is not to say that there may not be other ways of obtaining that intelligence. But, yes, in answer to your question, the criminal justice system has been a — a fount of intelligence in the years since September 11th.

And yet that’s exactly what Sen. Jeff Sessions (R-Ala.), the ranking member of the Senate Judiciary Committee, did when he sent out a press release boasting of an exchange he had today with FBI Director Robert Mueller during a hearing to examine the intelligence failures leading up to the unsuccessful Christmas Day bombing of Northwest Airlines Flight 253. From Sessions’ release:

FBI DIRECTOR MUELLER: “In this particular case, in fast-moving events, decisions were made—appropriately, I believe, very appropriately—given the situation…”

SEN. SESSIONS: “I don’t think you can say it’s appropriate. We don’t know what that individual knows, learned while he was working with al Qaeda, and we may never know, because he now has got a lawyer who’s telling him to be quiet.”

Let’s recall a point Spencer made on MSNBC last month in response to Pat Buchanan’s laments that the Nigerian suspect, Umar Farouk Abdulmutallab, was not immediately subjected to “hostile interrogation” — or what most of us would call torture.

We’ve seen we’ve gotten a lot of bad information from torturing people. I don’t really understand the argument that because every single time we have a new emergency, we have to forget about the hard lessons we’ve learned in the past over this. And then secondly, by every standard that we’ve seen so far, every piece of reporting, the guy cooperated. He immediately said he’s a member of al Qaeda. He started talking threateningly about how there were other attacks coming. So I’m not sure where we make this jump to the idea that we’re not getting information from the guy.

Right.

The White House spokesman, Robert Gibbs, has said Mr. Abdulmutallab provided “useable, actionable intelligence,” but declined to specify what it was. A law enforcement official said Mr. Abdulmutallab explained who gave him the bomb, where he received it and where he was trained to use it, among other things.

Eventually, Mr. Abdulmutallab stopped talking and asked for a lawyer, which he received about 30 hours after his arrest. It was not clear when in that timeline that the F.B.I. read him his Miranda rights.

But Sessions continued:

SESSIONS: “It’s not just the ability to prosecute this individual, but whether, if he were properly interrogated over a period of time, we may find out that there are other cells, other plans, other Abdulmutallabs out there boarding planes that are going to blow up American citizens.”

Here we go. What does Sessions mean by “properly interrogated”? What evidence is there, in the wake of news reports that Abdulmutallab immediately started talking upon his arrest, to suggest that he was not properly interrogated?

Make no mistake — when Sessions is talking about “proper interrogation,” this is a euphemism. He’s talking about waterboarding. He’s talking about torture. Elements of the Republican Party have become so completely Cheney-ized that they view due process, which is enshrined in the Bill of Rights, as “inappropriate” and maintain that torture should be the tactic of first resort whenever someone is suspected of being a terrorist.

And as Adam Serwer deftly pointed out this morning, Senator-elect Scott Brown (R-Mass.) represents the GOP’s continued acceptance of torture as standing operating procedure during interrogations. From Brown’s acceptance speech last night:

And let me say this, with respect to those who wish to harm us, I believe that our Constitution and laws exist to protect this nation — they do not grant rights and privileges to enemies in wartime. In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.

Raising taxes, taking over our health care, and giving new rights to terrorists is the wrong agenda for our country.

Serwer notes:

This is the new normal for Republicans: You can be denied rights not through due process of law but merely based on the nature of the crime you are suspected of committing. Brown’s rhetorical framing, that jettisoning the legal system we’ve had for 200-plus years represents “tradition” while granting suspected criminals the right to legal counsel represents liberalism gone mad is new, and I suspect we’ll hear it again. “New rights” recalls the term “judicial activism,” which conservatives have redefined to mean “decisions Republicans don’t like” instead of decisions that overturn precedent. “New rights” can be broadly defined as upholding the legal rights of individuals based on the Constitution, rather than arbitrarily according to the whim of politicians. For Brown and the GOP, if you’re accused of terrorism, you’re automatically guilty, so legal representation is frivolous. These guys look at the Constitution like David Vitter and John Ensign look at the Ten Commandments.

Let’s also be clear: Brown, a former military lawyer, isn’t merely talking about denying people their day in court, he’s talking about torturing people who are suspected of being terrorists. Brown says he doesn’t think waterboarding is torture, which is on par with thinking evolution is fake and global warming is a hoax. He thinks not torturing people suspected of a crime or detained by the military is granting them “new rights.” We know where this goes.

Ladies and gentlemen, the new face of the Republican Party.

Yoo starts things off with his typical flourish of disingenuousness:

Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden’s Afghanistan headquarters. What better way of detecting follow-up attacks? And what president — of either political party — wouldn’t immediately order the NSA to start, so as to find and stop the attackers?

Evidently, none of the inspectors general of the five leading national security agencies would approve.

Those inspectors general, in Yoo’s imagination, aren’t overworked bureaucrats in wrinkle-free shirts, cotton Dockers and overgrown haircuts, buried under endless reams of paper. They’re useful idiots for Osama bin Laden. In truth, the reason why the inspectors general don’t entertain that scenario is because it’s absurd. If the intelligence community knew what the “electronic communications” signatures heading into and out of Osama bin Laden’s Afghanistan headquarters were, they could very easily obtain warrants under the Foreign Intelligence Surveillance Act of 1978, because they’d possess individualized suspicion. This is an unproblematic case, fitting easily under the aegis of the law on Sept. 12, 2001.  It has absolutely nothing to do with what the inspectors general call the “President’s Surveillance Program.” That’s also why the battery of Justice Department leaders like Acting Attorney General Jim Comey, Associate Attorney General Jack Goldsmith, FBI Director Robert Mueller and Associate Deputy Attorney General Patrick Philbin fought to rein in the surveillance activities — because they were overbroad and outside of FISA, which Congress explicitly made the “exclusive means” for conducting legal foreign surveillance. Yoo continues:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States.

Actually, it’s absurd to think that a law like FISA does. Yoo cites the 9/11 Commission, saying it found that “FISA’s wall between domestic law enforcement and foreign intelligence” proved to be such a hindrance, but that’s a misrepresentation. FISA has no such wall. The “wall” was an invention of the Justice Department under Janet Reno to separate foreign-collected surveillance from criminal investigations, nothing even close to “live military operations,” and in practice that bureaucratic restriction went too far and inhibited necessary FBI-CIA collaboration. The Bush administration’s response wasn’t to get Congress to change FISA; it was to entirely circumvent it.

Clearly, the five inspectors general were responding to the media-stoked politics of recrimination, not consulting the long history of American presidents who have lived up to their duty in times of crisis. More than a year before the attack on Pearl Harbor, President Franklin Delano Roosevelt authorized the FBI to intercept any communications, domestic or international, of persons “suspected of subversive activities . . . including suspected spies.”

You know what law, passed in 1978, didn’t exist when FDR was president? Yoo goes even further, and takes selective quotations from Jefferson and Hamilton to suggest that his long-discredited theory that presidents have king-like powers during times of war, and yet he never comes out and says it, because even in The Wall Street Journal people can recognize absurdity.

What’s amazing about Yoo’s caustic attack on the inspectors general report is that the report itself embarrasses Yoo but does little else. There’s no suggestion of prosecution, no recommendation of additional investigation, no harsh language. It says simply that Yoo says what he says in this op-ed and that his superiors at OLC were cut out of that loop. That’s all. Yoo’s not even in danger, if reports about Attorney General Eric Holder’s potential new investigation are to be believed, of moving into the crosshairs of the Justice Department. Today’s attack on the inspectors general is Yoo’s response to having his own words quoted back at him. Which, perhaps, is insult enough. It’s like seeing the next 30 years of your life unfold before your horrified eyes.

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So what does today’s Inspectors General report say about Gonzales?

[T]he DOJ [Inspector General] concluded that Gonzales, as a participant in the March 2004 dispute between the White House and DOJ and, more importantly, as the nation’s chief law enforcement officer, had a duty to balance his obligation not to disclose classified information with the need not to be misleading in his testimony about the events that nearly led to resignations of several senior officials at DOJ and the FBI. The DOJ [Inspector General] concluded that Gonzales did not intend to mislead Congress, but it found that his testimony was confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.

Gonzales, by the way, was just hired by Texas Tech’s political science department.

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Cloud’s a good reporter and these are certainly views in tension. But Mueller didn’t oppose jailing Guantanamo detainees in the United States, he brought up solid practical concerns. And they appear to have intuitive solutions. For instance: isolate the detainees or restrict their access to non-terrorist convicts. I’m not a lawyer, but none of the remaining 240 detainees are American citizens, so presumably they’d have fewer rights in prison. That could probably lead to a justification for, say, increased surveillance of their prison activities or additional restrictions on their access to visitors, communications, and so forth. (I’ll withdraw that if the premise is incorrect, of course.)

Flournoy and Mueller: pretty reconcilable.

[W]hile it’s true that ”not a single prisoner has escaped from Gitmo since it was created,” it’s also true that no Muslim Terrorists have escaped from American prisons and our SuperMax prison “has had no escapes or serious attempts to escape.”  Actually, the only person to even make an escape attempt from a SuperMax is Green Arrow, who hasn’t succeeded despite the help of Joker and Lex Luthor.

In the Marvel Universe, though, prison breaks occur with alarming frequency.

A complex series of events led to a joint Punisher-Kingpin-Daredevil planned-and-executed prison break from Rikers’ Island at the end of Brian Michael Bendis’ run on Daredevil. And the Avengers re-assembled a couple years ago after Electro zapped out the security infrastructure at S.H.I.E.L.D.’s supervillain detention facility to free about 40 of his comrades. So as you can see, anything can happen if the United States lets Guantanamo-held detainees into civilian penitentiaries.

Though he wouldn’t discuss the risks posed by any particular individuals, responding to Rep. Jerrold Nadler (D-N.Y.), who tried to get him to agree that terrorists could be kept safely in maximum security prisons, as they usually are, Mueller said that’s not necessarily true, because imprisoned gang leaders sometimes run their gangs from inside prisons.

“It depends on the circumstances,” Mueller said.

Rep. Lamar Smith (R-Texas), the ranking Republican on the committee, repeated his mantra that terrorists should not be allowed anywhere in the United States. “No good purpose is served by allowing known terrorists, who trained at terrorist training camps, to come to the U.S. and live among us,” he said. “Guantanamo Bay was never meant to be an Ellis Island.”

Supreme Court of the United States (WDCpix)

In denying the right of a Muslim Pakistani immigrant to sue former Attorney General John Ashcroft and FBI director Robert Mueller for his prolonged imprisonment and harsh treatment based on his religion and national origin, the Supreme Court on Monday raised the bar for plaintiffs seeking to sue high-level government officials for policies carried out by their subordinates.

Illustration by: Matt Mahurin

Some in the media have reported that the decision revokes a detainee’s right to sue a public official for wrongful detention or mistreatment. In fact, the ruling was tailored narrowly, leaving the door open to such suits in the future. Yet it remains unclear how specific the plaintiff’s claims must be for a court to allow the case to proceed against high-level officials who condone unconstitutional practices.

In a sharply divided 5-4 opinion, Justice Anthony Kennedy, writing for the majority and joined by the conservative wing of the court, wrote that Javaid Iqbal had not set out sufficient specific facts to present a plausible case. Iqbal had claimed that after the Sept. 11, 2001 terrorist attacks the Justice Department and FBI, led by Attorney General Ashcroft and FBI director Mueller, instituted a policy that resulted in the arrests and mistreatment of thousands of men based solely on their race, religion or national origin.

Iqbal claims that in November 2001, he was arrested at his Long Island home for using fraudulent identification documents. He was designated a person “of high interest,” however, purely because he is a Muslim from Pakistan, he says. Iqbal was held for almost six months in extremely restrictive conditions in a maximum security prison in Brooklyn, N.Y., where he was segregated from the rest of the prison population and confined to a cell for 23 hours a day under a constant, blinding light. He claims that while there, his jailers “kicked him in the stomach, punched him in the face, and dragged him across” his cell without justification; “subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others,” and “and refused to let him and other Muslims pray because there would be ‘[n]o prayers for terrorists,’” according to the Supreme Court.

Although most of the mistreatment was allegedly committed by low-level guards and other officials at the prison, Iqbal claims that Ashcroft and Mueller were at the very least aware of the discriminatory detention and treatment and condoned it — or devised it — in violation of his First and Fifth Amendment rights.

Still, the court concluded that “the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU [the federal prison] due to their race, religion, or national origin. All it plausibly suggests is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.”

Since filing his legal complaint, Iqbal’s lawyers say they’ve obtained much more evidence that Ashcroft and Mueller were actively involved in developing the policy that led to the discriminatory detention of Muslim immigrants, partly because they were allowed to proceed with the case against the lower level federal defendants. In addition, three reports from the Office of Inspector General issued in 2003 confirm many of the charges that after Sept. 11, pursuant to federal policies, Muslim immigrants were rounded up and detained for prolonged periods without justification in harsh conditions, denied access to lawyers, and physically and verbally abused. But Iqbal and his lawyers didn’t know the exact role of high-level Justice Department and FBI officials when they filed the case.

In fact, plaintiffs usually don’t have all the evidence when they file a case; the evidence is usually produced in the course of the litigation. “Rarely will you know the inner workings of what happened, especially where the government is trying to keep things secret, such as after 9-11,” said Alex Reinhardt, a lawyer representing Iqbal in his case and now a professor at Cardozo Law School. “If the decision is over-read, it could have significant ramifications,” he said on Monday. “If courts require up front that you know your whole case before you file, it would be impossible to bring most cases.”

In a vigorous dissent, Justice David Souter, joined by Justices John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg, objected to the court’s imposition of these hurdles to government officials’ liability. In their view, the court’s opinion effectively “does away with supervisory liability,” because it implies that even if Ashcroft and Mueller knew that their subordinates were denying prisoners their constitutional rights and condoned it, they would not be legally responsible. The court does this, Souter wrote, even though Ashcroft and Mueller had conceded that “they could be held liable on a theory of knowledge and deliberate indifference. By overriding that concession, the Court denies Iqbal a fair chance to be heard on that question.”

Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrant Rights Project, warned on Monday that “there’s going to be a tendency to over-read the decision as creating an insurmountable barrier to these kinds of lawsuits. I think that’s a mistake. I don’t think the court’s suggesting you need to have detailed knowledge of what high-ranking officials were doing before you can have any discovery. This case turned in large part on the especially sparse allegations in the complaint,” he said, noting that much of the evidence supporting those allegations has since been produced. If they’d been cited in the case when it was filed, he said, “I think the court under its plausibility standard would have found it sufficient.”

Rachel Meeropol, a lawyer at the Center for Constitutional Rights who is representing former prisoners making very similar claims in another case, Turkmen v. Ashcroft, said that because the district court allowed her case to move forward, “we have all of that information that shows high-level official involvement in the practices we’ve complained of.” But when lawyers first bring a case, she said, they’re usually not in that position. In cases involving victims of government abuse, then, the court’s decision “gives [government officials] a sort of practical immunity from suit because only they have the specific information about what actions they may have taken,” she said.

Souter’s dissent, interpreting the majority as eliminating supervisory liability, is “a broad reading of the case,” she said. “I hope it’s not interpreted as being that far-reaching. It’s never been the case that you can hold high-level officials accountable simply because their employees did something wrong, but if they’re deliberately indifferent to the fact that their subordinates are acting unconstitutionally, that may be the basis for liability. That basis is called into question by this decision.”

Although the Supreme Court remanded the case to the court of appeals, which could allow Iqbal to replead his case, the precedent set by the court’s decision will not be so easily undone.