Holder's Pushback Doesn't Pass The Smell Test

The other day, Attorney General Eric Holder put out an angry letter to Senate Minority Leader Mitch McConnell (R-KY) in defense of the indefensible, charging the Undiebomber as a civilian. He finally admitted that it was his decision to do so, which included Mirandizing the terrorist, allowing the Undiebomber to keep his mouth shut. Which he did until recently.

After reading this letter, there are lots of things that aren’t kosher. I base this on what various high-level administration officials have told Congress, along with the CYA leaks that have been coming out of the Justice Department. Holder needs to be dragged, kicking and screaming if necessary, before Congress to answer new questions that his letter generates.

Here is what Holder says:

“I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government. On the evening of December 25 and again on the morning of December 26, the FBI informed its partners in the Intelligence Community that Abdulmutallab would be charged criminally, and no agency objected to this course of action.”

Thomas Joscelyn asks the obvious question:

While those other departments were informed, according to Holder, this evidently doesn’t include the senior-most members of those departments — per their congressional testimony. Senior officials including DHS Secretary Janet Napolitano have testified that they were not informed of the decision. If they were informed, which is unlikely, then they lied before Congress. If they weren’t informed, which is likely, then this means those departments have serious communication problems because such an important decision was never communicated up the chain. In other words, assuming Holder is right, then why weren’t the senior-most officials in those departments informed?

That’s assuming Holder is right. Something seems awfully fishy, as you’ll see shortly.

On January 20 of this year, several of the Obama administration’s highest-ranking officials appeared on Capitol Hill: Director of National Intelligence Dennis Blair, Director of the National Counterterrorism Center (NCTC) Michael Leiter, and Homeland Security Secretary Janet Napolitano before the Senate Homeland Security Committee, and FBI Director Robert Mueller before the Senate Judiciary Committee. In his letter, Holder claims the other relevant departments of the government, whose leaders were at these Senate hearings, knew that Holder was going to have the FBI officially charge the Undiebomber, with all the necessary due process niceties (like reading the Undiebomber his apparent Miranda rights) that would entail. But as Byron York reported at the time, it wasn’t clear who in those relevant departments was actually notified, because it wasn’t any of the people at the hearings:

The director of the National Counterterrorism Center, Michael Leiter, said he wasn’t consulted before the decision was made. The director of National Intelligence, Dennis Blair, said he wasn’t consulted, either. The secretary of Homeland Security, Janet Napolitano, said she wasn’t consulted. And the head of the FBI, Robert Mueller, said he wasn’t consulted.

In fact, Mueller went even further:

“The decision was made by the agents on the ground,” Mueller told the Senate Judiciary Committee on Wednesday, referring to the officials who apprehended Abdulmutallab when the plane landed in Detroit.

Mueller claims it was the agents on the ground who made the decision to Mirandize the Undiebomber, and that he was never contacted. Holder claims it was he himself who made the decision, but that he notified all relevant departments, none of which objected. There is a conundrum here. There didn’t seem to be a problem with the FBI going all the way up to Holder to get a decision, but somehow Mueller, their director, was kept completely out of the loop, telling Congress a month after the Undiebomber’s arrest that the decision was made “by the agents on the ground.” If what both men say is true, which is a definite possibility, then there is clearly a gap regarding who is running what at the FBI and the Justice Department, along with the communication gap that Joscelyn highlights, since neither Blair, Leiter, or Napolitano knew about the decision either. This begs a further question, why would Holder not tell Mueller, even after about a month (the time between the arrest and Mueller’s committee appearance) and perhaps longer, that it was the AG who made the decision?

Then there is this High-Value Detainee Interrogation Group (HIG) that was supposed to be in place. As has been typical, the administration made all these grandiose statements at the beginning about how the CIA wasn’t going to use “torture” any more (which they didn’t in the first place), that interrogations were going to follow the Army Field Manual, that Gitmo was going to be closed, that the 9/11 terrorists were to be tried in a federal civilian court in NYC near Ground Zero, etc., and all to be done so that America would be loved by the rest of the world. As has also been typical, there was absolutely no planning about how to accomplish any of this. After assembling a panel of “experts”, the administration announced in August that this HIG was going to take the lead in interrogating captured terrorists. Unfortunately, and after four months, this unit or units weren’t in place at the time the Undiebomber was captured, as admitted by DNI Blair in his testimony a couple of weeks ago. As reported in the same piece, the Senate Select Intelligence Committee queried Blair about whether or not the HIG was functional, and he replied “It’s moving along.” Excuse me? It’s moving along? So that means it still wasn’t active, right, when Blair was giving his testimony on Tuesday, even though it’s been six weeks since the Undiebomber was captured and at least two weeks since his testimony before the Senate Homeland Security Committee? Oh but not to worry; according to this piece in the Australian Sydney Morning Herald, Blair said the next day in a House committee hearing that the HIG is now established.

Holder also made the point in his letter that 300 terrorists had been successfully prosecuted in the civilian courts, which Holder wants us to believe justifies his decision to treat the Undiebomber as a common criminal. Unlike his decision to try Khalid Sheikh Muhammed and the other 9/11 terrorists in the civilian courts, Holder does provide legal reasoning for his prosecution of the Undiebomber; Bush did it (through a 2003 Presidential Directive). What’s ironic is that this administration has spent a year telling people how it isn’t the Bush administration, going so far as to never credit the Bush administration with anything, even when Teh Won’s administration follows Bush’s policies. Anyway, Andrew McCarthy destroys this mythical number (H/T: Bill Burck and Dana Perino). Even as he explains how Holder is “cooking the books” on these successful prosecutions, McCarthy shows how this is nothing but a non sequiter:

Calling a prosecution “successful” just means that we convicted the defendant; it does not mean that national security was well served. If, because of civilian due-process rules, we had to reveal national-defense information that we could have kept secret in a military commission — or if we had to spend hundreds of millions of dollars to address security concerns that could have been obviated by having a military trial in the safety of Gitmo — then the country would have been better off getting the same result in a military commission. That is common sense.

Elsewhere in Holder’s letter, the AG says that the criminal justice system is another national security tool, which he wants to use to make sure the U.S. gains victory and win its war against those who caused the 9/11 terrorist attacks (something that is amazing since Holder’s boss, Teh Won, is loathe to mention anything about winning the war or saying the word “victory”). I agree with what Holder says; but, it too is a non sequiter. It’s not a matter that the criminal justice system is used, but to what degree and what is the AG’s role; it seems that the administration has Holder holding the strings over intelligence matters as well as the criminal justice system, something not conducive to winning this war, in my opinion. Besides, the fact that the Undiebomber is even talking now (weeks after he was first talking, leading to the notion that there was a lot of information missed) is due to luck more than anything else. It was the terrorist’s father who first notified the State Department about his son’s activities. Could the government have even brought the family in from Nigeria to assist in convincing the terrorist to talk now if they hadn’t been concerned in the first place? Historically, terrorists’ families are either in denial about their kin’s activities or support them; the Undiebomber’s family is an aberration (and probably in extreme danger now). So there’s no way that Holder can claim credit based on his policies considering the circumstances surrounding the Undiebomber’s recent contrition.

I have some questions to add on to the one asking why it took Holder several weeks to tell the FBI Director that the AG made the decision about Mirandizing the Undiebomber. Why did it take over five months from the time the administration announced it was going to use the HIG to when it was finally established, assuming it actually is now established? Who were all the parties involved in getting this done? Did anyone hold it up, and if so, who and why? What was Holder’s involvement in all this? And that’s on top of these questions: who did Holder specifically tell in those other relevant departments about the decision to Mirandize the Undiebomber, since it doesn’t seem Holder contacted any of those departments’ leaders, and why didn’t the people in those relevant departments (and agencies) not push the information up the chain to their leaders, especially in the FBI? While Holder can’t answer that last question himself, he sure needs to be asked the others, especially to find out who in the relevant departments Holder told of his decision so that they can answer that last question.

I don’t hold Holder responsible for not stopping the Undiebomber from getting on the plane to commit his terrorist act. But the conflicting statements that have come out since the arrest are most assuredly his, and Teh Won’s, fault. Regarding Mirandizing the terrorist, we’ve heard the relevant people were told, then we hear other people’s bosses weren’t told. We hear from the FBI Director that the decision was made on the ground, but his boss, the AG, says he made the decision, and didn’t seem to tell the FBI Director this for more than a month. We hear from the AG that his policies are what is successful, but that doesn’t make sense since it was pure luck that the family reached out to the U.S. in the first place, before the Undiebomber got on the plane.

The bottom line is that Holder has a lot to answer for because his pushback letter isn’t all that convincing a response. Continuing to politicize justice and national security, something Holder has done since his first day on the job, ain’t cuttin’ it.