The Obama administration’s decision to try the Nigerian man suspected of attempting to blow up a Northwest Airlines flight on Christmas as an ordinary civilian criminal rather than as an “unprivileged enemy belligerent” in a military commission, as the 9/11 hijackers initially were, highlights the inconsistent approach taken by both the current and previous administrations, civil libertarians and defense lawyers say.
The Justice Department appears to have immediately treated the case of Umar Farouk Abdulmutallab, a 23-year-old Nigerian who claims he trained in Yemen with al-Qaeda, in the way it has long treated suspected terrorism: as a criminal act to be prosecuted in a civilian federal court.
[Law1] Arrested on Friday, Abdulmutallab was charged the next day, while being treated for burns in a hospital room in Ann Arbor, Michigan. He was charged with attempting to blow up Northwest Flight 253, which left from Amsterdam and was headed for Detroit.
Asked why the Department of Justice treated Abdulmutallab as a civilian rather than a suspected belligerent, DOJ spokesman Dean Boyd said: “At this time, we have no comment on the ongoing investigation or any prosecutorial deliberations — beyond the public charging documents that have been filed in the case.” The criminal complaint is here.
Defense lawyers who represent Guantanamo detainees who have not been treated as civilians applauded the Obama administration’s move, but noted the lack of a coherent rationale for continuing to treat other alleged terrorist plots as acts of war.
“There is something striking about fact that they treated the 9/11 attacks as an act of war but treat somebody who’s trying to blow up a plane as an ordinary criminal,” said David Remes, legal director of Appeal for Justice who represents almost a dozen Yemeni men still detained at Guantanamo Bay. “What is the basis of the distinction?”
Jonathan Hafetz, an attorney with the National Security Project of the American Civil Liberties Union similarly called it “a positive step that the Obama is handling this case through the criminal justice system which has demonstrated time and again that it is fully capable of prosecuting terrorism without sacrificing constitutional rights or values.”
He added in an e-mail that it is “unfortunate that the Obama administration is not applying this strategy across the board and instead continuing to detain individuals at Guantanamo without trial and outside the criminal justice system.”
This case was probably easier to send to federal court than some others because it does not involve a defendant who’s been detained for years without charge or tortured or otherwise abused by U.S. authorities, as have some detainees held at Guantanamo Bay. Those factors could all complicate a subsequent prosecution in federal court. By turning Abdulmutallab over to the FBI immediately, the administration could ensure that lawful procedures were followed and the evidence collected would more likely be admissible in a subsequent civilian trial.
That’s not the distinction the Obama administration has relied upon to justify the use of military commissions, however, and many critics have claimed that the administration has still failed to offer a coherent explanation for its choice of courts for different cases.
The Bush administration similarly chose different fora for different trials, often with little or not explanation. Richard Reid, for example, the so-called “shoe bomber” who tried to blow up an American Airlines plane shortly before Christmas in 2001, was, like Abdulmutallab, treated as an ordinary criminal and tried and convicted in federal court. In fact, the Bush administration tried more than 120 international terrorism cases in federal court after the 9/11 attacks. Still, both administrations have both treated some terror suspects with alleged links to al-Qaeda as war criminals to be tried in military commissions instead.
When Attorney General Eric Holder announced in November he was transferring the 9/11 suspects to federal court for trial, he also announced that four other high-level detainees would be tried by military commission. They include Abd al-Rahim al-Nashiri, the suspected USS Cole bomber, and others who allegedly attacked military targets. Holder at the time attempted to distinguish the cases on that ground, although many critics, including former Justice Department officials, said that distinction didn’t hold up.
Abdulmutallab’s claimed connection to al Qaeda suggests that his alleged attempt to blow up a plane could be treated as an act of war, and he could be tried as a war criminal as well. Similarly, the alleged USS Cole bomber and others charged as war criminals could easily be tried as alleged murderers in federal court.
In fact, as even Justice Department official David Kris has acknowledged, the crimes of conspiracy and providing material support for terrorism have traditionally been treated as federal civilian crimes, not as war crimes. That could complicate current attempts to try al Qaeda suspects for those crimes in the newly-reconstituted military commissions.
The hope of a speedy and successful prosecution may be the reason the Justice Department chose to prosecute this latest case in the civilian system, where it’s had a long record of success, both before and since September 11, 2001. Almost 200 terror suspects have been convicted in civilian federal courts since the 9/11 attacks; only three have been convicted in military commissions.
The alternative, say many legal experts, would have been to risk procedural delays, appeals and the reversal of any conviction in the new and untested military commissions.