While al Qaeda strives to increase its ability to attack the United States, the Obama administration is voluntarily relinquishing the tools Congress provided to fight terrorists. After September 11th, Congress granted the president special national security powers, including the right to detain and interrogate terrorists and to try them in military commissions. This marked a major policy change, with a switch in focus from punishing terrorist attacks to preventing them. Previously, the United States government primarily treated terrorists as common criminals. But due to onerous evidentiary burdens and significant jurisdictional limits, in the time between the first World Trade Center bombing in 1993 and the annihilation of the building eight years later, the government successfully prosecuted just a handful of terrorists per year (less than four on average). This left Osama Bin Laden, Khalid Sheikh Mohammed and countless other al Qaeda militants free to organize and expand, and to plot the September 11th attacks. Afterwards, the U.S. recognized that it had to change its approach to terrorism.
One week after September 11th, Congress passed a joint resolution, the Authorization for the Use of Military Force. The law grants the president the power to use “all necessary force . . . in order to prevent any future acts of international terrorism against the United States.” This includes the right to capture, detain and interrogate terrorists, as the Supreme Court affirmed in the 2004 decision United States v. Hamdi.
Using this post-9/11 power, the United States has gained key intelligence, prevented numerous attacks, and saved countless American lives. According to the CIA, information gained from interrogations “has been a key reason why al Qaeda has failed to launch a spectacular attack in the West since 11 September 2001.”
Nonetheless, the Obama administration failed to use this valuable counterterrorism tool on the Christmas Day bomber. Only a few hours after Umar Farouk Abdulmutallab, a self-professed al Qaeda-trained enemy, attempted to explode the Northwest Airlines flight from Amsterdam to Detroit, the Department of Justice decided to bring criminal charges against him in the Eastern District of Detroit, rather than transferring him to the military for questioning. It did so without consulting counterterrorism higher-ups, such as Secretary of Homeland Security Janet Napolitano, Intelligence Director Dennis Blair, and National Counterterrorism Center director Michael Leiter.