As a candidate, Donald Trump promised to jettison the Obama administration’s criminal-justice approach to terrorist detention and interrogation, and start treating captured terrorists as enemy combatants once again. “I know that they want to try them in our regular court systems, and I don’t like that at all,” Trump declared, adding, “We’re gonna load (Guantanamo Bay) up with some bad dudes, believe me.”
Well, in the past two weeks, his administration has captured two apparent “bad dudes” — one in Libya, the other in New York — and in both cases Trump has continued Obama’s policies to the letter.
Recall that in December 2009, many on the right were outraged when the Obama administration gave al-Qaida terrorist Umar Farouk Abdulmutallab — who nearly brought down a plane with an underwear bomb — a lawyer and a Miranda warning after just 50 minutes of questioning. In a January 2010 letter to Attorney General Eric Holder, Sen. Jeff Sessions and other Republicans on the Judiciary Committee demanded to know who “made the decision to treat Umar Abdulmutallab as a criminal suspect, entitled to Miranda warnings and the right to counsel, rather than an unprivileged enemy belligerent subject to military detention.”
There was similar outrage when the Obama administration did the same thing after Taliban-trained terrorist Faisal Shahzad tried to blow up a car bomb in Times Square … and when Chechen terrorist Dzhokhar Tsarnaev set off a bomb at the Boston Marathon … and when alleged Benghazi mastermind Ahmed Khattala was captured and questioned briefly without a Miranda warning aboard a Navy ship before eventually he was read his right and brought to Washington for the civilian trial now underway in federal court.
These are the policies Trump promised to change.
He had his first chance last month, when U.S. forces captured Mustafa al-Imam, who is alleged to have been involved in the Benghazi terror attack. But instead of holding him as an enemy combatant and questioning him under the laws of war, the administration is sending him to Washington to stand trial in civilian court — just as Obama would have.
Then on Tuesday, Trump had a second chance when accused Uzbek terrorist Sayfullo Saipov was captured alive after allegedly moving down and killing eight people on a New York bike path. Sen. Lindsey Graham told Trump that he should declare Saipov an enemy combatant.
“The last thing I want this guy to hear tonight is you have a right to a lawyer. The last thing you should hear is his Miranda rights,” Graham told Fox News. “I hope President Trump will break the cycle of turning the war into a crime by declaring this guy a suspected enemy combatant. Hold him under the law of war until we know exactly who he is and what he did.”
On Wednesday morning, the president suggested he might do this, telling reporters that Saipov was an “animal” and that he might “send him to Gitmo.” That turned out to be all talk as well. Instead, the administration read Saipov his Miranda rights, gave him a lawyer and charged him in federal court — just as Obama would have.
There is no way that interrogators were able to effectively interrogate Saipov before charging him. Were the intelligence community’s leading experts on Uzbekistan and the Islamic State in the room for his questioning? Did Saipov’s interrogators have time to check calling record and all the images, text messages, emails and other content — and run those contents by those intimately familiar with any National Security Agency raw traffic to, from or about him, and then confront him on the contents? Did they share Saipov’s answers with CIA experts for verification and recommended follow-up questions?
Federal authorities say Saipov told the FBI he plotted his attack for more than a year and has been in the country since 2010. Are they certain that they accounted for all of his actions, and interactions, during that entire period, before Mirandizing him? Did they bring in all his known associates for questioning and use their statements to further challenge and probe his statements? There is zero chance they did all this. So why is he already being told he has the right to remain silent? It is an outrage.
Continuing the Obama administration’s law-enforcement-first approach to detaining and questioning terrorists is simply inexcusable. So far Trump is all bluster and no bite when it comes to dealing with alleged terrorists.
Calling them “animals” is meaningless if he gives them legal protections they do not deserve — and fails to get intelligence from them that Americans deserve to keep them safe from more attacks.
Mr Thiessen, a fellow with the American Enterprise Institute and former chief speechwriter to President George W. Bush, writes a twice-weekly online column for The Washington Post. Follow him on Twitter @marcthiessen.