Analysis: The terrifying right to remain silent

WASHINGTON —

When Umar Farouk Abdulmutallab stopped talking to FBI agents after an attempt to blow up a plane failed on Christmas, it was not a failure of the U.S. criminal-justice system or the president.

When Abdulmutallab started talking again a week ago, it wasn't a validation of the system or the president.

Nearly 50 years after the Supreme Court ushered "You have the right to remain silent" into the American lexicon, a Nigerian suspected of carrying a poorly designed bomb in his underwear failed to take down an airplane but managed to ignite a dispute over whether that right extends to terrorism suspects.

The debate over how to investigate suspected terrorists allows politicians to ignore history, mischaracterize the Constitution and add new uncertainty to a system that two administrations and countless intelligence officials have spent a decade trying to clarify.

It was an unexpected controversy. Abdulmutallab, 23, was not the first terrorism suspect captured in the United States since 2001. The Bush administration sent many terrorists to prison, including U.S. sleeper-cell members, a Sept. 11 conspirator and a man who tried to bring down an airplane with a bomb in his shoe.

All were read their rights. All had lawyers. All appeared in court.

Abdulmutallab wasn't even the first terrorism case on President Obama's watch. Najibullah Zazi is under indictment in New York in a suspected al-Qaida bombing plot. Before he was charged, he and his lawyer spent days talking to the FBI.

That's not unusual. A 1996 study by University of California, Irvine, criminologist Richard Leo found that 78 percent of defendants in cases he reviewed waived their right to remain silent and cooperated with investigators.

After the Christmas plot, however, the president's critics say the administration should have treated Abdulmutallab as an enemy combatant. The right to a lawyer, Sen. Susan Collins, R-Maine, said last week, is reserved for U.S. citizens, not foreign terrorists.

Collins is wrong. Immigrants, even those who entered the country illegally, are guaranteed lawyers in the United States when they commit a crime. But the danger of the argument is not in its legal weakness. It's in its consequences.

It's not clear where Collins suggests Abdulmutallab should have been sent. To a military brig? The Supreme Court never has weighed in on whether that's lawful. Twice, former President George W. Bush had the chance to test the question, but he dropped the issue both times and brought the cases in criminal court.

Had Obama sent Abdulmutallab to a military prison, there's no guarantee he would have talked. Some detainees at Guantánamo Bay, Cuba, cooperated, some didn't. Some prisoners cooperate with the FBI, some don't.

What is certain, however, is that throwing Abdulmutallab in a military prison would have touched off a years-long court challenge like the ones that stalled Bush's anti-terrorism policies.

And the move would have jeopardized the chances of ever bringing a criminal case. Which means that, years later, Obama, like Bush, would face the question of what to do with dangerous prisoners who neither can be prosecuted nor set free.

Senate Minority Leader Mitch McConnell, R-Ky., said Wednesday that enemy combatants should be taken offshore, interrogated and prosecuted at Guantánamo Bay. That would represent a substantial shift from the Bush and Obama administrations, a shift that likely would require an act of Congress and has little to no federal case law supporting it.

Critics of the Abdulmutallab case also raise questions they don't even try to answer, such as:

• What role will the nation's lead domestic counterterrorism agency, the FBI, have if not to question terrorists?

• How agents are supposed to sort out domestic terrorism cases, such as the Oklahoma City bombing, from foreign terrorism cases before they conduct interviews? Should Timothy McVeigh, a U.S. citizen, have been prosecuted in a military base in Cuba?

The Obama administration quietly seethed while taking the recent criticism, knowing the FBI had persuaded Abdulmutallab to start talking again, providing intelligence about his contacts with al-Qaida in Yemen. And when that fact surfaced in leaks Tuesday, a senior administration official said it vindicated the strategy they'd held all along.

The problem with that reasoning? Obama is being drawn into a debate in which a suspect's cooperation determines whether the system is viable. If Obama doesn't want to take criticism the next time a terrorism suspect clams up, he can't be vindicated just because Abdulmutallab started talking.

Otherwise, it's a debate he can expect again and again.

Matt Apuzzo is a member of the Washington enterprise team for The Associated Press and covered legal affairs in Washington, Connecticut and Massachusetts.