Use rule of law to confront terrorists

Is Congress about to remove one of the most effective tools in our counterterrorism toolbox? They will if a bill introduced by Arizona Sen. John McCain (R) that is making its way through the Senate is passed. The legislation proposes indefinite military detention for all terrorism suspects, whether they’re picked up in East Africa or east Los Angeles, and essentially removes federal prosecution as a viable option.

This is a bad idea. Proponents of this idea claim that federal prosecutions are inefficient and risky because they don’t guarantee a lengthy sentence for every accused terrorist. My experience working in the federal system says otherwise, and according to New York University School of Law’s Center on Law and Security, since Sept. 11, 2001, federal investigators, intelligence agencies and courts have resolved 479 terrorism-related cases, with 404 people convicted through trial or plea bargain, many with very significant sentences.

{mosads}It’s a mistake to think that indefinite military detention makes us safer. For many of the cases in which I was involved, especially the “homegrown” cases, the stigma of indefinite military detention at Guantánamo was a major driver in moving people to commit jihad in the first place. This catch-22 scenario moves more moderate Muslims toward violence by perpetuating the various conspiracy theories that fuel the fire of jihad in the first place.

Using law enforcement as a tool in the U.S. counterterrorism toolbox is not only effective, transparent and legal, it has the added benefit of preserving our reputation as a nation built on the rule of law and basic freedoms afforded to all people.

This is not to suggest law enforcement is the only approach to combating terrorism, but we shouldn’t throw out the baby with the bathwater. The law enforcement approach, especially in domestic cases, allows for rapid interrogation and intelligence gathering by seasoned investigators and interrogators.

Such was the case with Umar Farouk Abdulmutallab, the Christmas Day “underwear bomber,” who was convicted in federal court and now faces a possible life sentence. Experienced FBI agents interviewed Abdulmutallab from his hospital bed and rapidly learned that he trained in Yemen as part of an al Qaeda in the Arabian Peninsula (AQAP) plot and was influenced by Anwar al-Awlaki.

The FBI obtained this information without reading Abdulmutallab his Miranda warnings. And yet, a federal court ruled it could still be used in his trial. This shows the system is more flexible than opponents portray.

Indeed, it is a misconception that law enforcement and intelligence interviews are mutually exclusive. The fact is, you don’t have to read a person Miranda warnings as soon as they are arrested, nor are they entitled to speak immediately with an attorney or get their proverbial “free phone call.” You can conduct lengthy intelligence interviews even when a person is held in U.S. custody on U.S. soil, which is exactly what happened in the Times Square attempted bombing case, the Najibullah Zazi subway plot, the David Headley case in Chicago, and in many others. These cases yielded actionable intelligence while preserving a viable prosecution.

We have made some good progress recently in our fight against terrorism. Last month, the CIA and Department of Defense bagged a 2-for-1 when a drone killed both al-Awlaki and Samir Khan, two of AQAP’s main links to wannabe jihadis in the West.

But while the military is great at finding kinetic solutions (i.e., guns and bombs) to terrorist problems, drone strikes are not the only end game when it comes to disrupting and dismantling terrorist groups. Far more terrorists are scooped up alive, and recent history has shown that indefinite military custody is not the best answer.

The case of Abdulmutallab is a reminder of this, and our congressional leaders would do well to pay attention to this case and drop legislation that removes a valuable tool from our counterterrorism toolbox.

Borelli is a 25-year veteran of the Federal Bureau of Investigation, where he was assistant special agent in charge in the New York Joint Terrorism Task Force, responsible for global investigations and counterterrorism missions.