Umar Farouk Abdulmutallab: Enemy Combatant or Criminal?

If the name Umar Farouk Abdulmutallab doesn’t ring a bell, you might know him better as the “Christmas Day bomber.” On December 25, Abdulmutallab managed to avoid the “rigorous” airline security in Amsterdam and boarded Flight 253 heading to Detroit with explosives strapped to his underwear. As Flight 253 began its descent towards Detroit, Abdulmutallab managed to light his leg on fire before being tackled to the ground and doused by fire extinguishers. After being taken to the front of the plane with burns on his legs and no trousers left, airline personnel and passengers broke into a spontaneous chorus of “Pants on the Ground.”

Upon landing and being taken into custody by Customs officials, no one could quite blame Abdulmutallab for thinking he was heading to Guantanamo Yemen. Indeed, Abdulmutallab was subjected to an entire 52 minutes of question by federal agents. But then a funny thing happened. The agents were replaced by a new team of federal agents who, acting on instructions from Washington, promptly read Abdulmutallab his Miranda rights and provided him with a lawyer. Not surprisingly, Abdulmutallab instantly clammed up and refused to divulge any more top secret information (for example, Osama’s whereabouts).

On December 26, Abdulmutallab was indicted in the United States District Court in Michigan. The move drew the ire of many, with Republicans blistering in their response. Maine’s Susan Collins complained that the Obama administration made a terrible mistake to “treat a foreign terrorist who had tried to murder hundreds of people as if he were a common criminal.” In a letter to Attorney General Eric Holder, all the Republicans on the Senate Judiciary Committee questioned why Abdulmutallab was treated as a criminal suspect rather than an enemy combatant. In response, the Democrats argued that Republicans were “politicizing” the bombing, in a manner inconsistent with former President George Bush’s choice to try shoe bomber Richard Reid as a criminal back in 2001. Back when Reid was tried in federal court, Judge William Young famously said:

You are not an enemy combatant, you are a terrorist. You are not a soldier in any army you are a terrorist. To call you a soldier give you far too much stature.

Political agendas aside, what then serves as the basis for deciding whether to view a terrorist as a criminal or an enemy combatant?

The Law Enforcement Paradigm

The traditional approach to viewing terrorism has been to consider it as a criminal phenomenon to be dealt with using normal law enforcement methods. Under this paradigm, the same measures that are used in combating crime – investigations, trials, and incarcerations – should be used to combat terror. The inherent checks and balances of these systems protect the human rights of accused persons. After all, human rights law exists to protect the minorities and the most vulnerable in our society. Who is a terrorist but an outcast, a minority, one that needs the very protection that human rights laws proclaim to give?

As the strength of terrorist organization grows, however, the traditional paradigm has been reformulated in order to grant authorities stronger enforcement powers to better combat terrorism. For example, after 9/11 the United States adopted The Patriot Act, which in part allowed invasive powers of search and surveillance, detention, and seizure of property which previously had not been allowed because they compromised human rights and basic freedoms. This increase in enforcement powers thus compromises the human rights of people suspected of terrorist activity.

In Charkoui v Canada (Citizenship and Immigration), [2008] 2 SCR 326, the Supreme Court of Canada (“SCC”) ruled that legal proceedings which allow prolonged detention of terror suspects based upon confidential evidence and limited judicial review violate the s. 7 Charter rights of liberty. In order to use the Law Enforcement Paradigm effectively, therefore, the human rights of suspected terrorists may be severely curtailed; alternatively, adherence to human rights law will obstruct the State from adopting measures in order to effectively combat terror. As a result, whether to prevent spillover effects from diluting human rights or law or in effort to effectively be able to combat ever increasingly sophisticated terrorism, there has been a paradigm shift towards the Armed Conflict Paradigm.

The Armed Conflict Paradigm

In view of the resources available to terrorist organizations that allow them to inflict as much, if not more, damage as some standing armies, the war on terror has been viewed in many quarters as essentially a military conflict. While in a Law Enforcement Paradigm it is the Judiciary that combats criminals, in an Armed Conflict Paradigm it is the Executive that fights a war. No longer bound by the strict Law Enforcement rules, under this Paradigm the executive may use targeted killing, lengthy administrative detention, and any similar tools that are analogous to those used against enemy forces in times of war.

While the Executive can doubtless act speedily and mobilize the resources of the nation in combating terror, there are two primary concerns with the Armed Conflict Paradigm. First, it is questionable whether international law truly analogizes terrorist activity with enemy state action. Where the level of violence is extremely high and cannot be adequately dealt with by the Law Enforcement Paradigm, however, a nation’s right to self-defense has been extended to allow for military action. Second, there is a concern that the Executive may use terrorism as a pretext for military action, rather than legitimate defensive strategies.

Conclusion

The increased power of terrorist organizations has forced a shift away from the traditional framework of the Law Enforcement Paradigm. In order to adequately combat terror, restrictions would have to be placed on human rights. Essentially, there is a tension between human rights laws aimed at preventing abuses by the State and limiting these same rights by endowing the State with increased powers to combat terrorism. Furthermore, the Law Enforcement Paradigm is reactive rather than proactive: it responds to the results of terrorism rather than the threat from terrorism.

By only allowing federal agents just over 50 minutes to question Abdulmutallab, a valuable opportunity to combat the existential threat of terrorism, particularly from al-Qaeda, was lost. At the time, White House spokesman Robert Gibbs attempted to defend the short interrogation period claiming that “FBI interrogators believe they got valuable intelligence and were able to get all that they could out of him”.  Oddly enough, however, on February 2 senior officials stated that Abdulmutallab was co-operating with officials and had provided “actionable intelligence”. Somehow it seems that the first interrogation wasn’t quite comprehensive enough. Furthermore, six weeks is quite a delay to act on “actionable intelligence”. One has to presume Osama’s real estate agent has already put Osama’s cave up for sale.

The limits of the Law Enforcement Paradigm, in turn, argue for the necessity of exploring the Armed Conflict Paradigm. Yet the legitimacy of entering the Armed Conflict Paradigm only extends insofar it is necessitated to combat that existential threat. In other words, the existence of a terrorist with information that could help combat terrorism should have placed Abdulmutallab squarely as an armed combatant. Once that information was gathered – and by all accounts Abdulmutallab was initially singing like a canary – the paradigm should once again shift back to the Law Enforcement model. At that point, by all means, indict and try Abdulmutallab with all the protections of human rights law.

Obama could have looked at Jose Padilla and Ali al-Marra, charged and detained on U.S. soil as an example of how to approach this contentious issue. In that case, the pair were initally designated enemy combatants but were eventually tried and convicted in Federal Courts. This time, however, the U.S. administration went ahead with the decision to handle Abdulmutallab in criminal courts without consulting FBI director Robert Mueller, National Counterterrorism Center director Michael Leiter, Director of National Intelligence Dennis Blair, or Homeland Security Secretary Janet Napolitano. While the intention to enshroud Abdulmutallab in all the protections the Federal Courts have to offer may be admirable, when facing enemy combatants one should be wary of the deficiencies of the Law Enforcement Paradigm.