If Republican critics of President Obama are to be believed, the administration made one of the biggest blunders in national security history when it placed the accused underwear bomber in the criminal justice system as opposed to the military alternative.
Umar Farouk Abdulmutallab was about to spill the beans on all of al Qaeda, the argument goes, before the White House tied both hands behind its back -- unilaterally limiting the type of interrogation procedures it could use on the suspect and then providing him unnecessarily with an attorney.
It's simply not true, say legal experts, including officials who formerly served in the military tribunal system.
James Cullen, a retired brigadier general who served as a JAG officer, tells the Huffington Post that there are narrow differences between the legal and interrogation proceedings Abdulmutallab was subjected to and those which would have happened in a military commission.
Contrary to conventional wisdom, the suspect would have been granted access to a lawyer if he had been put in a military system. In fact, he may have had easier access to an attorney.
"The military is not some type of Soviet show-trial kangaroo court," said Cullen. "Absolutely he would have gotten a lawyer."
Indeed, a study completed by The Century Foundation, a non-partisan research foundation, noted that under Defense Department rules, "regardless of a defendant's wishes, he will have a military lawyer appointed to him at government expense. However, he may have a regular criminal defense attorney only if he arranges and pays for it himself."
But, the next question goes: isn't there a difference -- with regard to the civilian and military systems -- in the time that can elapse between when a suspect is captured and when he or she has to be granted legal representation? Not all that much, says Cullen. Abdulmutallab, for starters, was questioned for 30 hours before requesting a lawyer. Military personnel might have had more time. But not all that much.
More broadly, even in a civil system, authorities can question a suspect without reading them their Miranda rights for a limited amount of time as long as there is "no intention to try the person" and it is "purely for intelligence purposes." This is little different then in a military setting, where -- if the detaining authority wants to prosecute the detainee -- the impetus is on bringing legal counsel into the equation early on. "If you want to prosecute you can't foul up the process," explained Cullen.
Nonetheless, conservative circles are howling about Obama's grievous misstep, insisting that valuable information was basically left secret.
"When you indict him, you immediately read him his Miranda rights, you give him a lawyer and he stops talking," Senate Minority Whip Jon Kyl, R-Ariz., said Sunday. "You can pursue a court action against this person later on if you want to, but right now the key thing is intelligence." There was, the Weekly Standard's Bill Kristol said on Fox News, a "failure to get information that we might have gotten."
There is a similar mischaracterization over what can be done in terms of interrogating the detainee, claim Cullen and others. Republican critics of the president insist that Obama forfeited effective interrogation measures by declining to go the route of a military commission. But there are limitations to what even military interrogators could do with Abdulmutallab. Under the Military Commissions Act, the army field manual has come to dictate the scope of interrogations. This means that tough measures are now out of bounds even if prolonged isolation and sleep deprivation are still permissible. It has also compelled the military to adopt the techniques used by their civilian counterparts in the FBI (lest they risk lessening the chance of securing a conviction).
"In either case you are going to rub up, at some point, against a constitutional standard," said Cullen. "You have diminished the detainee's ability to participate in a defense... we know that people will have a marked deterioration of mental facilities when you combine isolation with other circumstances."
"There would be significant constraints if someone were placed immediately to the military justice system just as they are when placed into the civilian justice system," said Emily Berman, counsel in the liberty and national security project at the Brennan Center for Justice at New York University.
There is, as Berman notes, a third option that the Obama administration could have used with regards to Abdulmutallab. That would be to designate him an enemy combatant and send him either to Gitmo or a so-called black site. This would allow the administration to hold the detainee indefinitely with limitations on legal contact. But the White House is currently trying to close Gitmo and wind down indefinite detentions. And they would be essentially forfeiting a conviction by going this route.
Moreover, the message itself doesn't necessarily fit within the administration's broader goals in the fight against al Qaeda. As Stacy Sullivan, counterterrorism adviser at Human Rights Watch posits: "al Qaeda views itself as warriors... Our argument is you shouldn't elevate their status to that. They are criminals and you should treat them just like criminals."