Umar Farouk Abdulmutallab

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Umar Farouk Abdulmutallab (born 1986) is a Nigerian citizen who was apprehended aboard a U.S. airliner, on 25 December 2009, while attempting to set off an explosive device to destroy the aircraft and himself. Al-Qaeda in the Arabian Peninsula, based in Yemen, has taken credit for the attack. The incident further complicates complex U.S. policy towards Yemen.

President Barack Obama, on 5 January 2010, added to criticism of the United States intelligence community of not "connecting the dots" indicating that he was a threat, and should not have been allowed on the aircraft.[1]

Background and warning from family

His father, Alhaji Umaru Mutallab, a wealthy businessman, visited the U.S. Embassy in Lagos, Nigeria in November 2009. Quoting text messages sent by Abdulmullatab, "“Look at the texts he’s sending. He’s a security threat”, his father asked for help from Nigerian and U.S. security agencies. The son had rejected the family wealth and was focused on radicalism.[2] The report was not given serious attention.

The attack

He boarded Northwest Airlines Flight 253 in Amsterdam, having flown there from Lagos, Nigeria, with an explosive sewn into his clothing; Dutch authorities do not believe he had help at Schiphol Airport. The explosive, pentaerythritol tetranitrate, was in a nonmetallic container sewn into his underwear; he attempted to detonate it with a syringe of an unspecified liquid, probably a strong oxidizer such as sulfuric acid. It resulted in fire rather than explosion, and passengers and crew overpowered and restrained him. There are also reports that the unstable liquid explosive triacetone triperoxide (TATP) may have been involved in some component of the device; this chemical, which can be made from common chemicals although with both risk of premature explosion and of failure to explode, has been used in a number of attacks associated with al-Qaeda.

Investigation and indictment

A grand jury in the Southern Division, Eastern District of Michigan, indicted him on six criminal counts on 6 January 2010:[3]

  1. "Attempted use of a weapon of mass destruction" (i.e., the explosive device) in violation of 18USC2332a(a)(2). "Weapon of mass destruction" is a legal term here, not the customary technical meaning.
  2. "Attempted murder within the special aircraft jurisdiction of the United States", under 18USC1113 and 49USC46506
  3. "Willful attempt to destroy and wreck an aircraft within the special aircraft jurisdiction of the United States", under 18USC32(a)(8) and 18USC32(a)(I)
  4. "Willfully placing a destructive device in, upon, and in proximity to an aircraft within the special aircraft jurisdiction of the United States, which was likely to endanger the safety of such aircraft" under 18USC32(a)(2)
  5. "Possession of a firearm/destructive device in furtherance of a crime of violence", as defined by 18USC924(c)(I)(a) and 18USC924(c)(1)(B)(ii)
  6. "Possession of a firearm/destructive device in furtherance of a crime of violence", as defined by 18USC924(c)(I)(a) and 18USC924(c)(1)(B)(ii)
  7. "Possession of a firearm/destructive device in furtherance of a crime of violence", as defined by 18USC924(c)(I)(a) and 18USC924(c)(1)(B)(ii); wording different than Count 6

Investigations in Yemen

Deputy Prime Minister of Yemen Rashad al Alimi told an 8 January 2010 news conference that Abdulmutallab may have met Anwar al-Aulaqi in Yemen's southern Shabwa province, one of at least three provinces of Yemen believed to contain strong al-Qaeda forces. "There is no doubt he met with al Qaeda elements in Shabwa, including likely with Aulaki," Mr. Alimi said, citing local intelligence investigations into the whereabouts of Mr. Abdulmutallab before he left Yemen on Dec. 4.[4]

Political criticism of process

A number of Republicans, particulary Rudy Giuliani, have criticized putting him into the law enforcement, rather than military system. With respect to giving him access to an attorney, Giuliani said ""Why in God's name would you stop questioning a terrorist? It seems to me we're going to be trying the most dangerous terrorists in the wrong place." Similar comments were made by Sen. Christopher Bond (Missouri) and Rep. Peter Hoekstra (Michigan), the ranking minority members on the Senate and House intelligence committees.[5]

It is not clear, however, what legal authority could be used to transfer an individual, taken into custody on a U.S. airliner, to military control. The Supreme Court of the United States has generally held that if an individual has never been subject to civilian law enforcement and was captured by the military, as in Johnson v. Eisentrager, the military may indeed have jurisdiction. Jose Padilla, like Abdulmutallab, was first arrested by the FBI. His subsequent transfer to military jurisdiction was reversed. The Court ruled, in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, that a prisoner taken on the battlefield could still petition for habeas corpus. A similar decision was rendered in Rasul v. Bush, where the prisoners came under the jurisdiction of the United States District Court for the District of Columbia because they were under U.S. control at Guantanamo Bay detention camp.

There indeed have been proposals for a special court system for non-national combatants, but no clear law applies. Specifically due to the absence of such law, one proposal came from the Brookings Institution fellows to develop a "Model Law for Terrorist Incapacitation."[6]

Attorney General Eric Holder said national security "is not a place for political gamesmanship -- the safety of the American people is, I believe and hope, beyond the partisan, reflexive negativism that passes for legitimate criticism in Washington." Other officials, such as David Kris, the assistant attorney general for national security, said "As a counterterrorism tool, the criminal justice system has been an incredibly effective intelligence collection platform for acquiring information from and about terrorists." [5]

Giving a Miranda rights warning to a defendant, who then requests counsel, makes any further statements made without an attorney inadmissible in court. It does not prevent intelligence specialists from talking to the individual, merely the prosecutorial use of any information they obtain. Weekly Standard reporter Stephen Hayes did write "The failure to obtain more from Abdulmutallab is all the more significant because intelligence officials are conducting fewer interrogations today than at any time since the 9/11 attacks. There are three reasons: (1) The administration has dramatically changed U.S. interrogation policy, sources say, and there is widespread confusion about what is permissible; (2) the [high-value detainee interrogation group (HIG)] which is supposed to conduct interrogations, does not yet exist; and (3) there are fewer terrorists to interrogate because the administration prefers to kill them with drone strikes rather than capture them on the ground." He quoted Sen. Susan Collins, ranking Republican on the House Homeland Security Committee, as saying “The determination to place Umar Farouk Abdulmutallab into the U.S. civilian court system was made without the input or knowledge of the Director of National Intelligence, the director of the National Counterterrorism Center, or the U.S. Secretary of Homeland Security,” ,[7]

References

  1. Michael A. Fletcher and William Branigin (5 January 2010), Washington Post Staff Writer
  2. Mark Mazzetti and Eric Lipton (31 December 2009), "Spy Agencies Failed to Collate Clues on Terror", New York Times
  3. United States v. Umar Farouk Abdulmutallab, Eastern District of Michigan, U.S. District Court grand jury
  4. Margaret Coker (8 January 2010), "Plane-Bomb Suspect May Have Met With Radical Cleric in Yemen", Wall Street Journal
  5. 5.0 5.1 Carrie Johnson (9 January 2009), "Airliner plot being prosecuted 'in wrong place,' Giuliani says", Washington Post
  6. Benjamin Wittes, Colleen A. Peppard (26 June 2009), Designing Detention: A Model Law for Terrorist Incapacitation, Brookings Institution
  7. Stephen F. Hayes, "Lack of Intelligence: Why didn’t the Obama administration interrogate the Christmas bomber?", Weekly Standard