Attorney General Eric Holder said Wednesday he made the decision to charge the Christmas Day terror suspect in civilian court rather than the military system, with no objection from all the other relevant departments of the government.
In a letter to Senate Republican Leader Mitch McConnell, the attorney general wrote that the FBI told its partners in the intelligence community on Christmas Day and again the next day that Umar Farouk Abdulmutallab would be charged criminally.
Holder's letter was the latest volley in a vigorous counterattack by the Obama administration to Republican charges that the arrest and FBI interrogation of the Detroit suspect was a mistake that cost a chance to learn key information.
The letter followed less than 24 hours after senior administration officials disclosed that the suspect had resumed talking to U.S. interrogators last week after breaking off his discussions the day of his arrest.
Holder said that the possibility of detaining Abdulmutallab in the U.S. military system under the law of war was explicitly discussed in the days following the arrest, including at a Jan. 5 meeting that included President Barack Obama and senior members of the national security team.
"No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued," the attorney general wrote.
Holder said his decision was consistent with earlier practices followed uniformly in both the Obama and Bush administrations.
"The Bush administration used the criminal justice system to convict more than 300 individuals on terrorism-related charges," Holder wrote. The attorney general specifically mentioned the case of Richard Reid, who tried but failed to ignite a shoe bomb on a U.S.-bound trans-Atlantic jetliner.
"The practice of the U.S. government followed by prior and current administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States," Holder added.
Holder defended the decision to read Abdulmutallab his Miranda rights, which has been a focus of the Republican criticism.
FBI Director Robert Mueller testified Tuesday that FBI agents questioned Abdulmutallab until he entered surgery, and that the suspect was not advised of his Miranda right to remain silent until after he emerged from surgery. A federal law enforcement official, requesting anonymity to discuss an ongoing case, said the suspect made clear upon emerging from surgery he was going to stop talking and then was given his Miranda warning.
"Neither advising Abdulmutallab of his Miranda rights nor granting him access to counsel prevents us from obtaining intelligence from him," wrote Holder "On the contrary, history shows that the federal justice system is an extremely effective tool for gathering intelligence."
Republican critics have argued that Abdulmutallab could have been declared an enemy combatant and held indefinitely without providing him access to an attorney.
"The government's legal authority to do so is far from clear," Holder wrote. He cited a ruling by his Republican predecessor as attorney general, Michael Mukasey, while he was a federal judge, that the Bush administration could not prevent an enemy combatant, Jose Padilla, from speaking to an attorney while he was in military custody.
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