FBI Director: I wasn't consulted on how to charge Abdulmutallab 

FBI Director Robert Mueller appeared before the Senate Judiciary Committee today and revealed that he was not consulted on the question of whether to handle accused Detroit airline bomber Umar Farouk Abdulmutallab as a defendant in the civilian justice system or as an enemy combatant. Abdulmutallab, who was trained by al Qaeda -- with whom President Obama says the United States is at war -- was charged as a civilian and given Miranda rights and a taxpayer-supplied lawyer. At a Judiciary Committee hearing today, ranking Republican Sen. Jeff Sessions asked Mueller, "Who made the decision that Abdulmutallab was going to be treated as a criminal rather than an enemy belligerent?" The answer: the agents on the scene, with no input from the FBI director.

"Abdulmutallab was arrested on the plane after these incidents; there was no prior discussion," Mueller said. "He was handed over, I believe, by the personnel on the plane to CBP [U.S. Customs and Border Proection], who originally had custody of him. He was taken to a hospital in which the FBI took custody of him. It happened so fast that there was no time really at that point whether the transfer was made very quickly, given the moving circumstances, to determine whether alternative arrests could or should be made."

Sessions asked again: "Who made the decision that he would be treated as if he were a criminal to be tried in civilian courts and be provided Miranda warnings? Who?"

"The decision to arrest him, put him in criminal courts," Mueller answered, "the decision was made by the agents on the ground. The ones that took him from the plane and then followed up on the arrest -- "

"So the decision was made by agents on the ground based on some protocol or some policy that they understood?" Sessions asked.

"Based on an ongoing, very fluid situation," Mueller answered, "in which they are trying to gather the facts and determine what culpability this individual had, but as important as determining the culpability of this individual, what other threats were out there that needed to be addressed?"

After the agents decided to treat Abdulmutallab as a civilian criminal, he was given a lawyer and a Miranda warning informing he had the right to remain silent. "Immediately, I assume, the lawyer advised his client not to talk," said Sessions.

"Without getting too much into the details," Mueller answered, "in this particular case the agents interviewed him for a period of time for any information relating to ongoing and other threats -- "

"Before or after a Miranda warning was given?"

"Before Miranda warnings were given."

"Well, that's pretty dangerous," Sessions answered, "because anything he said during that time is not admissible in a civilian court, is it?"

"That's correct," Mueller answered. "No, I take that back -- there's a noted exception for emergency situations in a case called Quarles…"

After a little discussion on whether there might be exceptional circumstances in which non-Miranda statements could be used against Abdulmutallab, Sessions zeroed in on the question of just who was responsible for making the decision to try Abdulmutallab as a civilian. "Are you satisfied that you have a clear understanding, a national policy about how these people should be treated once they are apprehended?" Sessions asked. "It sounds to me like the guys on the ground just made a decision on the fly."

"There are decisions made whether or not to arrest somebody, and our arrest powers -- " Mueller began.

"Not arrest powers," Sessions interrupted. "That's not a problem. Were you contacted about whether or not this individual should be treated as an unlawful enemy combatant or a civilian criminal?"

"No," said Mueller.

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