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Kristol: Obama Can Still Designate Abdulmutallab An Enemy Combatant

11:29 AM, Dec 30, 2009 • By WILLIAM KRISTOL
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Unable to defend themselves on the merits, the administration and Democratic leaders are trying to change the topic to blaming Bush and Republicans. This is pathetic.

First of all, Obama is president. He has been for almost a year. Whatever mistakes Bush did or didn't make, Obama is in charge -- and the issue isn't partisan score-settling, it's whether the system he is in charge of is working. It isn't.

One reason the system isn't is some of the people he put in charge -- Janet Napolitano and Dennis Blair come to mind. Another reason is certain concrete policy choices they've made -- e.g., embracing a law enforcement approach and, without even weighing the choice, immediately choosing to treat Abdulmutallab as a criminal suspect, not an enemy combatant.

But, a knowledgeable friend with national security experience e-mails, a deeper reason may be this:

Obama fundamentally altered the culture and risk-taking incentives of the intelligence community with policy and personnel changes. The sense of urgency is gone, and he's made it uncool to call the war on terror a war at all. If he wants to treat terrorism like a criminal act, rather than an act of war, we should not be surprised when the results look a lot like the bureaucratic foul-ups that happen all the time in law enforcement. He gutted the Homeland Security Council coordinating role, he diluted the focus of the daily intel brief, he made CIA officials worry more about being prosecuted for doing their jobs than capturing terrorists. He's so worried about the political consequences to his administration of a terrorist attack on our home soil that he denies the obvious -- that Major Hasan is a jihadist terrorist -- and he wants to shut down GITMO and bring terrorists here. He's made it his business to turn much of the national security apparatus set up by Bush and Cheney upside down and has succeeded....

On the comparisons to how the shoe bomber was treated, it's important to note that the shoe bomber was arrested in December 2001. President Bush's order authorizing detentions of enemy combatants was issued in mid-Nov 2001 and there was scant infrastructure in place or much precedent a month later to hold a terrorist in custody as an enemy combatant. Of course, by 2002 there was GTMO and the CIA program overseas, and President Bush started designating terrorists as enemy combatants, including Jose Padilla (a US citizen), al-Marri, and detainees at GTMO. Most important...I bet that if the administration had thought the shoe bomber had more information to provide under interrogation, President Bush would not have hesitated to order the Justice Dept to have the criminal charges dismissed and designate him as an enemy combatant. Will Obama take that step if his investigators tell him that's the only way to get more info from Abdulmutallab? The point is that we're eight years down the road from 9/11 and the shoe bomber, and Obama refuses to use the authority he has to get the intelligence we need.

This last question is key. In light of the reporting that Abdulmutallab has clammed up on the advice of his lawyers, will Obama now at least consider designating him an enemy combatant?