Fighting terror blindfolded

The Obama administration is asking the nation's security forces to fight blindfolded when it gives criminal status to enemy combatants, allowing them to take shelter behind the Fifth Amendment.

The administration made a very bad decision when it delivered Christmas Day Bomber Umar Farouk Abdulmutallab to the custodians of the nation's criminal justice system instead of handing him over to military authorities as an enemy combatant. It is likely to make the same mistake again and again unless there is sufficient public outcry.

The decision clearly compromised the possibility of learning details of the plot to blow up Northwest Airlines Fight 253 and of getting leads that might thwart the next al-Qaida plot. The Washington Post reported on Dec. 30 that Abdulmutallab, "after initial debriefings by the FBI, has restricted his cooperation since securing a defense attorney, according to federal officials."

The record disagrees with those, like White House national counterterrorism adviser John Brennan, who argue that the criminal justice system allows equal opportunity to learn essential facts from prisoners. On Sunday Mr. Brennan said the prisoner would be offered a shorter sentence if he agreed to reveal what he knows. But, as in the case of shoe bomber Richard Reid, who was granted criminal-justice status by the Bush administration, if the underwear bomber simply pleads guilty he can avoid all questions.

The administration had a choice. Congress and the Supreme Court have shaped an alternative justice system for members of al-Qaida to be treated as enemy combatants. As such, they can be held indefinitely, and subject to rules set by the president they can be questioned at leisure by highly experienced military interrogators. There is no guarantee, of course, that this system will obtain good intelligence, but the odds are clearly higher than they are for obtaining useful intelligence from enemy combatants treated as criminal defendants with their own lawyers.

But the Obama administration, under pressure from liberal members of the House of Representatives and looking out for its domestic priorities such as health care reform, has turned its back on the work done by Congress in the Detainee Treatment Act and the Military Commissions Act, as modified by Supreme Court decisions.

Sen. Lindsey Graham, R-S.C., who is an acknowledged legislative authority on the legal issues involved, insists that the administration lost a valuable opportunity for gathering intelligence when it charged the Christmas Day bomber as a criminal.

He also tells us the decision to try confessed 9/11 mastermind Khalid Sheik Mohammed in criminal court was a "huge mistake" that, among other negative consequences, leaves battlefield commanders uncertain how far they can go in interrogating prisoners.

The result is, as Brookings Institution legal expert Benjamin Wittes said last year, "We have no basic agreement on the ground rules under which we are going to fight a conflict that everybody agrees we need to fight."

Sen. Graham says Congress needs to set forth further rules to end this risky confusion. Whether this administration and this Congress will rise to the occasion to counter the threat is, unfortunately, open to serious doubt.