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By Victoria Toensing
WSJ.com
On the third day after Umar Farouk Abdulmutallab's attempt to blow up a Detroit-bound airliner, President Barack Obama finally interrupted his Hawaiian vacation to announce that our government "will not rest until we find all who were involved and hold them accountable." But how are we going to do that now that the terrorist is lawyered up and is even challenging what should be a legal gimme: giving the government a DNA sample?
It was not wise to try enemy combatants such as Zacarias Moussaoui, the so-called 20th hijacker in the 9/11 attacks, in our regular criminal courts. And it is unwise that Mr. Obama has decided to try some Guantanamo detainees in New York City. Never in our country's history prior to 2001 have we done so, for good reason.
The constitutional protections designed to ensure a person is not wrongfully convicted have no relevance to wartime military needs. The argument that our system is strong enough to try a terrorist is a non sequitur. It equates to the argument that if a person is in excellent health, she can withstand being set ablaze.
Moussaoui tied the Virginia federal court in knots for over three years, principally by insisting on the Brady rule, which requires that the defendant be given access to any evidence that could be exculpatory. (Moussaoui was convicted because he pleaded guilty, not because there was a trial and jury decision.)
The Brady rule is a needed constitutional protection for the accused bank robber, where the government wants to produce only the one witness who identifies the defendant as the perpetrator but not the other six witnesses who cannot identify him. It does not work where a terrorist demands access to all the servicemen and women who witnessed his capture on the battlefield.
Yet even the legal issues of a trial are of little importance compared to the threat to our security putting this terrorist into the regular criminal justice system presents. Abdulmutallab is in effect in possession of a ticking bomb, but we cannot interrogate him. His right to remain silent, as required by the Miranda rule, thwarts Mr. Obama's hollow attempt on Tuesday to "assure" us he is "doing everything in [his] power" to keep us safe.
Questions need to be answered. Where was Abdulmutallab trained? Who trained him? Where is the training facility located? Where is the stash of PETN, the explosive used in the bomb? What are the techniques he was told to use for getting through airport security? Was there a well-dressed man who helped him board the plane without a passport as claimed by another passenger? And, most important, are future attacks planned?
Yes, we could try him first and then interrogate him. But by then the information is stale, especially if he utilizes the same legal challenges Moussaoui did to drag out the process for years.
As the president told us, there were indeed "human and systemic failures" that "contributed to this potential catastrophic breach of security." By placing this terrorist into the regular criminal process, he continues and magnifies those failures, which could leave to an actual catastrophe.
Abdulmutallab is not a United States citizen. By detonating a bomb on an airplane filled with 269 civilians, he committed an illegal act of war. A military commission, which has been used for such conduct since Gen. George Washington, will give him due process. But first, he must be interrogated.
Ms. Toensing was deputy assistant attorney
general in the Reagan administration, where she supervised all terrorist cases.