McConnell Attacks Holder on Underwear Bomber, Justice and Security Conflict Grows

McConnell ripped the FBI agents who interrogated Abdulmutallab as ill-equipped and lacking the necessary language skills to question the detainee even though he spoke English. He also argued that Holder misclassified Abdulmutallab as a civilian criminal and said that reading him his rights and notifying him of his right to legal counsel obstructed the intelligence community's ability to get information about the locations, training techniques, and communications of Al Qaeda in Yemen.

A recognized public safety exception allowed the FBI to initially question Abdulmutallab without reading him his Miranda rights. When they detained him in Detroit, agents mirandized Abdulmutallab after consulting with Holder's office and Department of Justice attorneys.

"Americans wanted us to get every bit of information we could about Al Qaeda from this man," said McConnell. "Instead, the administration put a higher priority on reading him his Miranda rights and getting him an attorney."

The attorney general dismissed the assertion made by McConnell and Sens. Kit Bond (R-Mo.), Susan Collins (R-Maine), Jeff Sessions (R-Ala.), and John McCain (R-Ariz.) in a January 27th letter that he ignored national security because of an unnecessary preoccupation with administering Abdulmutallab his Miranda rights.

In an open letter dated Wednesday, Holder answered Senator McConnell's demands for him to testify in front of Congress and defended his and the FBI's decision to charge Abdulmutallab criminally. "The practice of the U.S. government, followed by prior and current Administrations without a single exception," wrote Holder, "has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States."

Holder reaffirmed the administration's commitment to the law, pointing out that McConnell seemed to forget there is no lawful facility where the government can hold terrorists captured inside the United States without access to an attorney. "Victory means defeating the enemy without damaging the fundamental principles on which our nation was founded," he wrote.

Still, when given the choice between preserving the civil rights of terrorists and acquiring intelligence, McConnell left no doubt where he thinks America's priorities should lie. "No one denies that a balance must be struck between civil liberties and protecting the homeland," he said. "But . . . our priorities should be clear: keeping Americans safe should always win out."

Ben Wittes, a senior fellow at the Brookings Institute specializing in government studies, said that while there's a serious policy question over how to treat terrorists arrested in the United States, the historical record is clear. "There's no debate to be had about what the practice was regarding how you can deal with those people," said Wittes. "You treat them under the criminal justice system if you capture them domestically." McConnell's demands and the administration's stance highlight a growing conflict between the intelligence world and the criminal justice system on these issues.

Holder argued that it's possible to obtain credible information without declaring a detainee an enemy combatant and using enhanced interrogation techniques. According to Wittes, the CIA's program produced huge amounts of intelligence that would have been impossible to get if interrogators were limited by the criminal justice system.

This summer the Obama administration limited how common terror suspects should be treated, revoking the CIA's standing authority to detain and interrogate enemy combatants and issuing an executive order requiring everyone – CIA included – to use only interrogation tactics described in the Army field manual. Wittes claims that there is no policy currently in place that offers specific guidelines for treating high value detainees under these limits.

"I know what happens in the last administration," said Wittes. "If you capture a high value detainee, you now know what you can't do, but it's not obvious what replaces it."