Did U.S. Intel Officials Mislead Congress About Christmas Day Bombing?

New details about the events surrounding the Christmas Day interrogation of the bombing suspect aboard Northwest Flight 253 raise questions about the accuracy of testimony provided Wednesday by senior U.S. intelligence and Homeland Security officials. 

In testimony that has fueled controversy on Capitol Hill, Director of National Intelligence Dennis Blair, National Counterterrorism Center Director Michael Leiter,  and Homeland Security Secretary Janet Napolitano were all asked the same question during an appearance before the Senate homeland-security committee by Sen. Susan Collins, the panel’s ranking Republican: “Were you consulted regarding the decision to file criminal charges against [suspect Umar Farouk] Abdulmutallab in civilian court?”

Leiter and Napolitano gave the same answer. “I was not.” Blair also said, “I was not consulted,” and asserted that the government “should have” brought in a special High-Value Interrogation Group (HIG) to conduct the questioning of the suspect—a comment that infuriated senior officials in the White House and revealed an apparent rift among national-security officials over the handling of the Christmas Day incident.

But some officials (who asked not to be identified because of the sensitivity of the issue) said those responses to the panel may have been misleading and glossed over the extent to which all the relevant national-security agencies, including top aides to Blair and Napolitano, were fully informed about the plans to charge the suspect in federal court hours before he was read his Miranda rights and stopped cooperating.

A key event was a 5 p.m. secure videoconference call on Christmas Day that included Leiter, who reports to Blair, and presided over by John Brennan, President Obama’s chief counterterrorism adviser. Also on the call was Jane Lute, the deputy secretary of homeland security and Napolitano’s No. 2.

During that conference call, a Justice Department lawyer briefed the group about the questioning of Abdulmutallab and the plans to file a criminal complaint against him the next day, Dec. 26.

Neither Leiter nor any of the other participants, including representatives from the FBI and the CIA, raised any questions about the Justice Department’s plans to charge the suspect in federal court, the officials said.  “If you participate in a conference call and you don’t raise any objections, that suggests you were consulted,” said one senior law-enforcement official. Another added that “nobody at any point” raised any objections, either during the meeting or during a four-hour period afterward when Abdulmutallab was informed of his Miranda rights to be represented by a lawyer.

Asked about the apparent discrepancy, a DHS official said, “There is a difference between being informed and being consulted. We were informed of the decision that had been made. Nobody from DHS was consulted.” A spokesman for Leiter declined to make any comment. An official in Blair’s director of national intelligence office (who also asked not to be identified) said, “This is a mischaracterization of the events as we understand them. The director stands by his statements.”

“By the time of the 5 p.m. conference call, it was a fait accompli” that Abdulmutallab was going to be charged in criminal court, a U.S. intelligence official said when asked to explain how Blair and Leiter could have said they were not consulted about the decision.

Abdulmutallab was apprehended by federal agents as soon as the Northwest flight landed at Detroit Metropolitan Airport on Christmas Day and was immediately rushed to University of Michigan Medical Center in Ann Arbor for treatment of burn wounds he suffered while he tried to ignite a bomb device sewn into his underwear.

While at the hospital, he was interrogated for “about an hour” by veteran FBI agents with the bureau’s Joint Terrorist Task Force in Detroit. During that hour, one official said, the agents learned a wealth of information from Abdulmutallab about his connections to Al Qaeda; who he met with in Yemen; where he got the bomb that was sewn into his underwear; and “who trained him in Yemen.” Added another official: “We got a lot of leads.”

But after the initial questioning at the hospital—which was conducted without reading the suspect his rights—Abdulmutallab was taken away for treatment for his burns. It was during that time that agents on the ground, in consultation with Justice, decided to file a criminal complaint against him. A discussion of that decision was, one official said, a “main purpose” of the 5 pm. conference call with Brennan.

It would not be until 9 p.m. that evening that agents read Abdulmutallab his Miranda rights informing him that he had the right to remain silent and be represented by a lawyer. But by that point—whether because of being read his rights or because he had more time to reflect on his situation—Abdulmutallab’s attitude changed. He became belligerent, refused to cooperate, and made statements about his hostility to America, the officials said. “He was ranting and raving and chanting the Quran,” another said.

Republicans on Capitol Hill have since seized on the testimony of the intelligence officials as evidence that the administration’s national-security team bungled the questioning of Abdulmutallab, treating him as a criminal defendant in the civilian courts rather than as an “enemy combatant” who could have been subjected to aggressive interrogations without the presence of a lawyer.  "It's clear the administration's own intelligence officials think they fumbled the Christmas Day terrorist case," charged GOP Sen. Kit Bond, vice chairman of the Senate intelligence committee. "That this administration chose to shut out our top intelligence officials and forgo collecting potentially life-saving intelligence is a dangerous sign."

But Justice officials have argued that the idea of not charging Abdulmutallab was never even considered; for all the criticism they have taken from Capitol Hill over the issue, they point out that only two individuals arrested in the United States after 9/11 have been declared “enemy combatants”: accused “dirty bomb” suspect Jose Padilla in June 2002 and Ali Saleh Kahlah al-Marri, a suspected associate of Khalid Sheikh Mohammed, in June 2003. In both cases, the government ended up transferring them back into the criminal-justice system because of concerns that the Supreme Court would find the entire idea unconstitutional. In the six and a half years since al-Marri, hundreds of terror suspects arrested in the U.S. have been prosecuted in federal court without any consideration being given to transferring them to military custody, officials said.

Moreover, when President Obama convened his national-security team on Jan. 5 to discuss the Christmas incident, the decision to charge the suspect in federal court was specifically discussed, and again nobody present raised any objection to it. In fact, Secretary of Defense Robert Gates made the point that even if Abdulmutallab had been transferred to military custody, it is unlikely that any more information could have been gleaned from him, since “enhanced interrogation techniques” have been banned by the administration.