HH: I begin with Michael Isikoff of Newsweek Magazine. Michael, good 2010 to you, first time we’ve talked to you this year.
MI: Well, Happy New Year to you.
HH: And it’s a very interesting day to be talking with you, because I read the first two paragraphs from the AP report earlier today, “al Qaeda can be expected to attempt an attack on the United States in the next three to six months, senior U.S. intelligence officials told Congress Tuesday. The terrorist organization is deploying operatives to the United States to carry out new attacks from inside the country, including clean recruits with negligible trail of terrorist contacts. CIA director Leon Panetta said al Qaeda is also inspiring home grown extremists to trigger violence on their own, Panetta added.” Michael Isikoff, what do you know about this story that’s not in the AP story?
MI: Well, look, anybody who followed the aftermath of Christmas Day, it was pretty clear that there were a lot of pieces of intel out there about, particularly al Qaeda in the Arabian Peninsula, al Qaeda in Yemen, making efforts to target the U.S. If in fact Mr. Aulaqi, the Imam, was…we still have yet to see his communications with the Fort Hood shooter, Hasan. But we do know that he had contacts with Abdulmutallab, the Nigerian suspect on Christmas Day. And so look, and that’s just…and then you put that together with the cases that the FBI has made in the last few months, Zazi, the guy in New York coming from Denver who had been in Pakistan, Headley, the case in Chicago which is a fascinating case, where you had a guy living in Chicago, a U.S. citizen, who was in direct contact with some pretty high level folk, al Qaeda folks in Pakistan within the last year. Yeah, there’s a lot of reasons to be concerned. Now on the other hand, you know, I’ve got to say, I’ve also heard, you know, this kind of talk on and off from the intel agencies, you know, straight back to the aftermath of 9/11, when if you recall, there were sort of regular reports that they were about to attack, about to mount an attack, we can expect a second wave, you know, on down the line. So needless to say, we know enough to know the intel here is far from perfect. But yeah, is there reasons to be concerned? Absolutely.
HH: Have you had a chance to read Marc Thiessen’s Courting Disaster yet, Michael Isikoff?
MI: I have not.
HH: In it, he discussed why some of those attacks that were predicted were not, did not occur. It’s because of aggressive interrogation, and then turning of some of the al Qaeda operatives who then, we were able to stop the Los Angeles library bombing because of that, et cetera, get Hambali, et cetera. Very detailed, good book, I think you’ll love it. I’m sure you’ve got it on your reading list.
MI: I’ll take a look.
HH: Now the question is, though, given all we know, and three to six months is very specific, don’t you think that pressure is going to grow to revoke the Miranda rights of Abdulmutallab and begin to interrogate him?
MI: Well, there’s a couple of different ways this can play out, one of which is that he cuts a deal through the criminal justice system like a lot of people have done, like apparently Mr. Headley has done in Chicago, and provides a wealth of information about his al Qaeda contacts, and we learn, and more arrests, and more people who get targeted. I mean, I don’t know that, no, I don’t think he’s going to be removed from the criminal justice system, which is the only way that could be done, and to essentially be declared an enemy combatant. That’s never been done in a case like this. In fact, the only two cases in which the Bush administration did it, one in 2002, one in 2003, they ended up punting on it, and putting them back, putting both people, well, one, Padilla, Jose Padilla in 2002, was put back into the criminal justice system by the Bush White House, and then it was the Obama White House that put al-Marri back into the criminal justice system. And the reason they did it in both is because both knew that once it got to the Supreme Court, the Supreme Court was not likely to sustain the idea that you can arrest somebody in the United States who’s in the United States legally, and then strip them of their Constitutional rights, and then declare them enemy combatants. So…
HH: Now those put backs occurred after extensive interrogation, though, Michael Isikoff. If we have a credible report of an attack imminent within three to six months, and we’ve got the background intelligence in places like the Telegraph of London, which set up thirty to fifty of these suicide bombers coming out of al Qaeda in the Arabian Peninsula, and we’ve got a bomber from al Qaeda in the Arabian Peninsula, and we’re not interrogating him while we let his lawyers negotiate over a deal, it seems to me that we are on the brink…if an al Qaeda in Arabian Peninsula bomber got to the United States, who might have been stopped by intensive interrogation of Abdulmutallab, what would be the consequences of that?
MI: Well, they wouldn’t be good. All right? I mean, there’s no question. All I’m saying is this idea of stripping him of his, and declaring him an enemy combatant, which I think you’d have to do in order to accomplish what you’re talking about…
HH: Yes, you would.
MI: …is not like this has been done routinely in the past. And in fact, it hasn’t been done at all in the last six years, including the last five of the Bush administration. They never did it. They never continued to do that, and take steps like that, because everybody realized that this was a big, weighty step that probably wouldn’t pass Constitutional muster.
HH: I don’t think…Michael, I think that’s incorrect. I think that what they did with Padilla was interrogate him first, get all of his information, then remand him to the courts.
MI: No, no. If you remember, go back and look, this was all poised to go to the Supreme Court, whether what they did in that case was Constitutional.
HH: Yes, I know, but what they did…
MI: That was the issue, you know, whether removing him from the criminal justice system under the circumstances they did, whether that was something that they had the power to do, whether the president could do that on his own, unilaterally declare somebody an enemy combatant.
HH: But Michael, they did it.
MI: And rather than let the Supreme Court decide that issue, not the issue of well, we’ve extensively vetted him, we’ve already interrogated him, and now we can put him back in the criminal system, whether what they did originally was Constitutional. And at that point, when that was all poised to go to the Supreme Court, they punted.
HH: Yes, they did. But my point is they had interrogated him for three and a half years when they punted. What they did was 50 minutes with Abdulmutallab.
HH: And if we’ve got a wave of attacks coming, we can run the risk of losing a Con law suit down the road. But why wouldn’t you interrogate him for the next there and a half years? I mean, do you not think that American people are saying the same thing by major majorities? It was a big issue in Massachusetts, Michael.
MI: Oh, yeah. No, no, no question about it. Look, the politics of this is, there’s no dispute that the politics of this has shifted pretty dramatically.
HH: Has any serious investigation of Holder’s senior advisers on this been done? Because there continue to be reports that many of them were involved in the defense efforts on behalf of Gitmo detainees prior to joining the administration, including Eric Holder’s law firm, Covington and Burling.
MI: Right, right.
HH: And that this is crippling their ability to make serious judgments…
MI: Well, let me just answer that. I mean, that, I have to say, that strikes me as a completely bogus issue. Anybody who goes into the Justice Department who has previously worked in private practice has represented all sorts of accused criminals, convicted criminals, money launderers, drug traffickers, or their law firms have, you know, white collar crooks. And…but does that mean they retain sympathy for white collar crooks and drug smugglers and money launderers when they get into high positions of authority in the Justice Department? Of course not. Nobody suspects that.
HH: Clever, but totally beside the point. Good sophistry.
MI: Why is that beside the point? It is exactly on point.
HH: Because the question is an ideological…if you are going to represent a Gitmo defendant, almost certainly most of those who agree to do so will do so out of a deeply held, sincerely developed convictions about how justice ought to treat unlawful combatants. If you take those Gitmo defense lawyers, and put them in the Department of Justice, their ideological predisposition is going to be rather a change from what went before them. And the question I’m just asking, not that they’re bad people for doing that, but has anyone investigated how many of them there are, and what their role is in developing this?
MI: Well, there have been claims, but what, are you suggesting that Eric Holder has some ideological predisposition to be sympathetic to terrorists? I mean, is that what you’re suggesting? Come on.
HH: No, of course not. I said he has an ideological predisposition to be inclined to try terrorists as criminal defendants to the exclusion of a fair consideration of whether or not to be enemy combatants.
MI: Well, yeah. You know what? He does have an ideological predisposition to do that. It was the articulated position of the Obama campaign when they won the election. I mean, this is…
HH: And my question, Michael, is does it make sense to hold onto that in the face of an imminent threat, which about which they have just testified three to six months, and we’ve got a bomber who came out of the Arabian Peninsula, and we’re not interrogating him.
MI: President Obama in his National Archives speech, where he laid out what the policies of this administration were, said our preferred option, number one, when we can, is to try people in civilian courts. So it’s not like you need to go back to oh, my God, you know, these people have some conflict of interest because some of them worked for law firms that represented Guantanamo detainees, and forced the government to try to prove that they were in fact who they said they were. You know, this is the openly stated position, and the position when the American people elected Barack Obama president. So this is all on the table. It’s not that there’s something sneaky or something unethical here.
HH: No, it’s not, Michael. It needs to get on the table in detail, so the American people can understand how thorough is the ideological bias that now infests the Department of Justice that blinds people to the risk that we are at right now. But I appreciate as always talking to you, Michael Isikoff of Newsweek.
End of interview.