As the Obama administration fails to close the Guantanamo Bay detention center by today's self-imposed deadline, Republican members of the Senate Judiciary Committee are attempting to drive the issue of terrorism detention and interrogations by asking the Justice Department for details on how it arrived at the decision to charge the Detroit Christmas bombing suspect and who authorized it.
"We are writing to ask who within the Department of Justice made the decision on Christmas Day to treat Umar Farouk Abdulmutallab as a criminal suspect, entitled to Miranda warnings and the right to counsel, rather than as an unprivileged enemy belligerent subject to military detention and a full opportunity to gain intelligence," Sen. Jeff Sessions, R-Ala., and other Republican members asked in the letter sent Thursday.
The handling of Abdulmutallab's case came under further scrutiny Wednesday after the director of national intelligence, Dennis Blair, and FBI Director Robert Mueller testified on Capitol Hill at hearings on the attempted Christmas Day attack.
Blair testified that Abdulmutallab should have been questioned by special intelligence interrogators under the High-Value Detainee Interrogation Group, or HIG, rather than by FBI agents.
"That unit was created exactly for this purpose, to make a decision on whether ... a certain person who's detained should be treated as ... a case for federal prosecution," Blair said before the Senate Homeland Security and Government Affairs Committee. "We did not invoke the HIG in this case. We should've. Frankly, we were thinking more of overseas people."
Some DOJ and national security officials were confused by Blair's comments because the HIG has not been formally mobilized, despite the announcement of the HIG being established in August.
"The administration has recently created the High-Value Detainee Interrogation Group, but it is not yet operative, so it could not be used," Select Committee on Intelligence Chairwoman Dianne Feinstein, D-Calif., said following a hearing of her committee Thursday. "And there was no process in place for intelligence community officials to be consulted before the individual was Mirandized.
"I think, in these situations, there needs to be a consultation among the principals of [the departments of] Justice and Intelligence and the administration," Feinstein added. "What happened here was, it was standard procedures that were followed."
Thursday night Sen. Susan Collins, R-Maine, ranking member of the Senate Homeland Security and Governmental Affairs Committee, said she will introduce legislation proposing that any terrorism suspect arrested in the U.S. have his case reviewed by intelligence agencies.
Senator Collins said Thursday, " Frankly, I was stunned to learn that the decision to place the captured terrorist into the U.S. civilian criminal court system had been made without the input or the knowledge of any of those three top intelligence officials: the Director of National Intelligence, the Director of the National Counterterrorism Center, and the Secretary of Homeland Security."
GOP Complains of Lost Intel Opportunity
The Republican members of the Senate Judiciary Committee also wrote in their letter to the attorney general, "We believe the department's hasty decision to pursue criminal charges against Mr. Abdulmutallab deprived our intelligence agencies of a critical opportunity to interrogate an al Qaeda-trained terrorist who was fresh from training in Yemen."
Asked about the letter, Matthew Miller, the director of public affairs for the Justice Department, said in a statement, "Since Sept. 11, 2001, every terrorism suspect apprehended in the United States by either the Bush administration or the Obama administration has been initially arrested, held or charged under federal criminal law. Al Qaeda terrorists such as Richard Reid, Zacarias Moussaoui and others have all been prosecuted in federal court, and the arrest and charging of Umar Farouk Abdulmutallab was handled no differently.
"Those who now argue that a different action should have been taken in this case were notably silent when dozens of terrorists were successfully prosecuted in federal court by the previous administration," Miller's statement said.
Asked if the decision to Mirandize Abdulmutallab was made at the level of an assistant U.S. attorney, Mueller said, "No, it's above that. It's above that. I hate to get into the -- because I'm not fully familiar with all who talked to whom on the afternoon. But I do know it was not made necessarily at the local level."
On Thursday, White House press secretary Robert Gibbs said at the White House briefing, "I believe [the] decision was made by the attorney general."
Officials reportedly held a series of classified video conferences in the hours after the attempted bombing and nobody raised objections to moving forward with bringing criminal charges against Abdulmutallab.
"In the hours immediately after Abdulmutallab allegedly attempted to detonate an explosive device on board a Northwest Airlines flight, FBI agents who responded to the scene interrogated him and obtained intelligence that has already proved useful in the fight against al Qaeda," Miller said.
"It was only later that day, after the interrogation had already yielded intelligence, that he was read his Miranda rights," Miller added. "After the department informed the president's national security team about its planned course of action, Abdulmutallab was charged in criminal court."
Witnesses at Thursday's Intelligence Committee hearing included Blair, National Counterterrorism Center Director Michael Leiter, NSA Director Lt. Gen. Keith Alexander and CIA Deputy Director Steve Kappes.
Following the hearing, Sen. Kit Bond, R-Mo., the ranking Republican on the committee, expressed his concern about how the FBI handled the case and cited the State Department and Justice Department for not being more forthcoming as the committee conducts its review of the failed attack.