January 9, 2010

Eric Holder’s Justice Department rushed to file an indictment Wednesday against Flight 253 terrorist Umar Farouk Abdulmutallab. The telling document is a monument to lost opportunity. Come hell or high water, the Obama administration will press ahead with its commitment to treat al-Qaeda’s war against the United States as a crime wave best managed by the federal courts.

“Al-Qaeda,” in fact, is a term you will not find in the bare-bones, seven-page charging instrument. Nor will you encounter such words as “Yemen,” “jihad,” “terrorism” — neither “Islamic” or “Islamist.” And if you’re looking for the names of any co-conspirators — such as the al-Qaeda satellite (al-Qaeda in the Arabian Peninsula) that has publicly claimed credit for the attempted Christmas Day atrocity, or the enemy combatants who’ve been running that outfit since their improvident release from Gitmo — you’d best look elsewhere.

Mentioning “enemy combatants,” of course, would be tantamount to saying there is an ongoing military conflict. It would be as if Congress had authorized the use of force after an attack against the United States — as if we had, say, a couple of hundred thousand American troops in harm’s way. There’s no hint of that in this indictment. Instead, we helpfully learn that Delta Airlines is a “United States commercial airline of which Northwest Airlines [is] a subsidiary.” We learn that Northwest’s Flight 253, along with the 289 passengers and crew onboard, were “at all times material to this Indictment . . . in the ‘special maritime jurisdiction of the United States.’”

That turns out to mean that we can have a civilian criminal prosecution in which “venue is proper in the Eastern District of Michigan.” What could possibly be more important than that?

Lots of things: gathering intelligence, for one. We have now had confirmed — by President Obama himself, along with top White House counterterrorism adviser John Brennan — that, while Janet Napolitano’s system was working so well, Abdulmutallab was an untapped well of operational intelligence.

He’d been training with al-Qaeda for weeks in Yemen, now one of the hottest hubs of terror plotting. He was undoubtedly in a position to identify who had recruited him, who had dispatched him on his mission, and who had trained him in fashioning and detonating chemical explosives. He was in a position to tell us what al-Qaeda knows, that Janet Napolitano apparently doesn’t, about our porous airline-security system. He was, moreover, almost certainly in a position to pinpoint paramilitary training facilities, to tell us about other al-Qaeda trainees being taught to do what he was trying to do, and to fill many gaps in our knowledge of the terror network’s hierarchy, routines, and governmental connections in Yemen.

That was not to be. The Obama administration decided that forging ahead pell-mell with a criminal prosecution was more important than acquiring every morsel of useful information Abdulmutallab has to give. That meant telling him, immediately upon arrest, that he didn’t need to speak to the government at all if he didn’t want to. It meant promising to get him a lawyer. It meant he could only be questioned for a few hours — by agents who happened to be on the scene but probably didn’t know much about al-Qaeda’s Yemeni operation. It meant the assignment of a defense lawyer and required court appearances that instantly shut down all questioning.

And, yesterday, it meant the Justice Department had to file a “stop the clock” indictment. Under the Speedy Trial Act, when an arrested person is denied bail, the government has only ten business days to file formal charges. So the government hastily slaps together a very lean indictment. Prosecutors never want to allege anything they’re not positive they can prove. Blunders in an indictment signal that someone may have given false testimony in the grand jury or that the Justice Department’s theory of the case is flawed. Such errors are exploited to great effect by defense counsel at trial.

So, at this premature investigative stage, the government alleges only what it knows for sure. Indications are that it doesn’t know much. There are only six counts. They all charge Abdulmutallab alone, as if he were the only relevant actor in this conspiracy. Indeed, by the Justice Department’s lights, you can’t even call the case a “conspiracy.” DOJ hasn’t charged one — not with al-Qaeda, not with anyone.

For now, the indictment portrays Abdulmutallab as if he were the lone-wolf terrorist that Obama administration officials, including the president himself, absurdly labeled him to be in the initial hours after his capture, snug in their default denial of the fact that there is a war on and that jihadists still hate us — despite all the Cairo speechifying, the bowing, the engagement, and the new tone. Abdulmutallab is accused, by his lonesome, of trying to destroy an airplane, of using explosive devices, and of the attempted murder of 289 people — a number that apparently includes the terrorist himself. (That’s not likely to go over well with the president’s fans in the “right to die” community, but when you’re in a mad rush to meet a litigation deadline, these sorts of hiccups happen.)

#pageRest assured this won’t be the final indictment. The investigation is now scorching the earth with subpoenas. Phone and travel records are being combed. Old wiretaps are being scrubbed. Ultimately, there will be a superseding indictment, and it will probably include conspiracy charges. For now, though, the government is playing catch-up with events. More important, it is playing catch-up without Abdulmutallab. Because Obama is going the civilian prosecution route, there is no interrogating him without his lawyer’s okay — and that won’t be given unless the Justice Department is willing to plea bargain and make valuable concessions.

And that’s the point. Even the current skeletal indictment shows we can easily convict Abdulmutallab and get him sentenced to life imprisonment without knowing a single additional detail. We could do that tomorrow or five years from now. We don’t owe this terrorist any concessions. The case and the evidence are not going anywhere.

Prosecutorial success, however, has precious little to do with national-security success. For the latter, we need intelligence. We could have gotten it — and gotten it right now, when it would be most useful to U.S. military and intelligence officials trying to protect Americans.

President Obama could have designated Abdulmutallab an enemy combatant, detained him as a war prisoner, denied him counsel, and had him interrogated until we’d exhausted his reservoir of information. Indeed, the president could still do that. He could direct the attorney general to table the indictment. Then, some time down the road, he could hand Abdulmutallab back to the Justice Department for prosecution. No, we wouldn’t be able to use the fruits of his military interrogation against him. But as the indictment filed Wednesday shows, we don’t need those statements to convict him. We could convict him now.

To protect the United States, though, we don’t need Abdulmutallab’s conviction. We need his information. Wednesday’s indictment demonstrates what two weeks of Obama’s amateur-hour performance have suggested all along: We don’t have it.

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.