Does Northwest Flight 253 Bomber Umar Farouk Abdulmutallab Belong in a Military Commission?

The answer to that question depends on whether you believe Umar Farouk Abdulmutallab is a common criminal and Northwest Flight 253 is a crime scene, or you believe he is an unlawful enemy combatant and Flight 253 is a battlefield. Abdulmutallab didn’t pick pocket another passenger or even hit a crew member on Flight 253 on Christmas Day 2009. That’s what a criminal might do. Instead, Abdulmutallab smuggled a bomb onboard a jumbo jet in an attempt to blow it up with approximately 300 people on board while the plane was in its final decent over U.S. soil in order to try and kill even more innocent people on the ground. That’s what enemy combatants fighting an illegal war attempt to do.

Despite this latest act of war committed in violation of the laws of war, Abdulmutallab will be treated by the Obama Administration as a common criminal and tried in federal court. This decision appears to be based on two factors: the attack occurred inside the U.S. and there is enough evidence to convict Abdulmutallab in federal court. Both miss the mark. The decision to classify members of al-Qaeda should not be governed by which forum provides an opportunity for a conviction, but rather, which system allows for the greatest ability to collect intelligence to defeat the enemy. The fact the attack occurred here, against civilians, is an aggravating factor not a mitigating one.

We have a military commissions system precisely because we are at war. The purpose of using that system is not punitive. It’s centered on engaging al-Qaeda in a legal framework that allows us to gather intelligence in a time and manner consistent with war fighting as opposed to criminal justice. Our primary goal with Abdulmutallab must be to gather information on who he is associated with and what other plots might be out there. It is not to build a criminal case against him and yet by treating him as a criminal defendant we hinder our ability to achieve our goal by granting him the right to remain silent and the right to a speedy trial.

The Obama Administration uses military commissions and was right to work with Congress in 2009 to strengthen them. However, the standard employed by the Administration for determining who is held as an enemy combatant and tried before a military commission is incoherent – terrorists who attack the military overseas are treated as enemy combatants whereas those who attack civilians here at home are treated as common criminals. Thus, as the enemy gets closer to America’s shores, he miraculously transforms from a combatant to a criminal, and we simultaneously self impose restrictions limiting our ability to defend ourselves, despite the danger actually increasing. However, the law does not command such an approach.

The Supreme Court, in Ex Parte Quirin, the case of the Word War II Nazi saboteurs, one of whom was an American citizen, allowed for the trial of all eight saboteurs to be held in a military commission for committing war crimes on U.S. soil. The saboteurs argued the Constitution required they be held as criminals and tried in civilian court for their offenses. In rejecting such assertions, the Court upheld the government’s claim that operating on U.S. territory without a uniform with the intent to strike industrial targets was a violation of the laws of war, rendering the men unlawful combatants subject to trial by military commission. This war with radical Islamists has been called the “long war” and we need a rational and consistent policy for classifying our enemy of today, regardless of where we capture him.

Supporters of civilian trials for al-Qaeda terrorists will no doubt point to the cases of Zacarias Moussaoui, the so-called 9/11 20th highjacker, and Richard Reid, the so-called airplane shoe bomber, both of whom were foreign nationals sent to wage unlawful war against us and both of whom the Bush Administration detained as criminals and prosecuted in federal court. Those were early mistakes in this long war that we should learn from not emulate.

The Moussaoui case is instructive as to the perils of waiting too long to extract intelligence from captured al-Qaeda members. Despite the U.S. government having arrested Moussaoui on immigration charges in August 2001, the FBI was ultimately blocked from searching his lap top on the basis there was insufficient probable cause to do so. As the 9/11 Commission noted, the information Moussaoui possessed “might have brought investigators to the core of the 9/11 plot.”

Does Abdulmutallab have similar timely information about another plot or on the location of those who sent him to America? Did he tell the FBI everything before he invoked his otherwise non-existent “right” to remain silent? It is not enough that Abdulmutallab might tell us all he knows months from now through plea negotiations. As for the Reid trial, a statement from the terrorist himself at his sentencing is highly enlightening: “I am at war with your country.”

Umar Farouk Abdulmutallab is not an isolated extremist who just decided to try and blow up a jet one day. Abdulmutallab is part of a network at war with the United States that has consistently tried to attack us and our aviation system in particular. Our classifying the terrorist depending on the location of his target and the point of his capture is ad hoc, schizophrenic and dangerous. Treating him as a “common criminal” subject to bail hearings and the like will not degrade or diminish him. Rather, it will serve only to degrade our own capability to combat al-Qaeda and protect our homeland.