“Power Wars: Inside Obama’s Post-9/11 Presidency” by Charlie Savage
1. Aboard Flight 253
It was about half past eleven on December 25, 2009-a quiet Christmas morning. The administration of President Barack Obama, the constitutional lawyer who had risen to power on a message of change from the tumultuous era of President George W. Bush’s “global war on terror,” was not yet a year old. The new president was vacationing in his native Hawaii, and his national security legal-policy team were scattered to their own homes as an event that would reshape their story began to unfold.
Around ninety-two hundred feet above the surface of the earth, Northwest Airlines Flight 253, an Airbus A330 bound from Amsterdam to Detroit, approached the border between Canadian and American airspace. Inside, one of the two hundred and ninety people aboard, a Nigerian passenger named Umar Farouk Abdulmutallab, stood up from seat 19A, next to the window looking out onto the aircraft’s right wing.1 Three days earlier, the young man-a banker’s son who had studied in Britain and was fluent in English-had marked his twenty-third birthday. Now, he was preparing to die.
Abdulmutallab rummaged through the carry-on bag stashed in the overhead bin a row behind his seat, found a Ziploc of toiletries, and carried it down the aisle to the bathrooms at the rear of the plane.2 Inside one of the cramped compartments, he methodically washed his face, brushed his teeth, and dabbed on cologne.3 Then, considering himself purified, he walked back to his seat, past dozens of the strangers whom he intended to kill.
Abdulmutallab believed he was about to commit an act of jihad and martyrdom. This would be “retaliation,” in his word, for the United States’ support of Israel in its “killing of innocent and civilian Muslim populations in Palestine,” as well as for America’s “killing of innocent and civilian Muslim populations in Yemen, Iraq, Somalia, Afghanistan and beyond, most of them women, children, and noncombatants.”4 The innocent passengers on the plane who would die if his suicide bombing was successful were nearly all noncombatants too, and they included many women and children. But Abdulmutallab dismissed them all as “collateral damage” in a war between the United States and Islam.5 It was a misuse of the term, since he was deliberately targeting them and a civilian aircraft. But the term was also heavily loaded from its frequent invocation by the American government in its excuses for the civilian casualties that resulted incidentally from its missile strikes targeted at Islamist militants-when the United States acknowledged those strikes and bystander deaths at all.
At 11:38 a.m., Flight 253 was passing over Lake St. Clair, which lies along the international border northeast of Detroit, and was about nine thousand feet above the ground. Muttering to a nearby passenger that he did not feel well and wanted to sleep a bit before they landed, Abdulmutallab slumped back in his seat and draped a thin airline blanket over his head and body. Concealed beneath it, he said his final prayers to himself and then pulled down his cargo-style pants.
His underwear, which he had been wearing for days, was curiously bulky-like a toddler’s pull-up Pampers. But the extra padding was not intended to absorb. Sewn into pouches were packages of chemicals known by the abbreviations TATP and PETN, the latter a prime ingredient in plastic explosives. The idea, conceived by a bomb maker in Yemen, was to ignite a chemical fire that would detonate the TATP, which would in turn trigger a far more powerful PETN blast-a compound bomb that used no metal parts and so was undetectable at a routine airport-security checkpoint. The plane would be blown open in midair.
Abdulmutallab unwrapped the tape from a plastic syringe, inserted its tip into the seam around the TATP pouch, and pushed the plunger.
2. Change and Continuity
At that moment, six time zones to the west, the dawn had not yet broken over the highly guarded Hawaiian compound where Obama and his family were staying. Campaigning for the Democratic Party’s presidential nomination, then–Senator Obama had sharply criticized many of the national security policies that Bush and Vice President Dick Cheney had put in place following the terrorist attacks of September 11, 2001. Claiming that a president’s power as commander in chief trumped legal constraints in wartime, the Bush-Cheney administration had authorized Central Intelligence Agency interrogators to torture detainees in secret overseas prisons. It had declared that the Geneva Conventions did not protect wartime prisoners captured in Afghanistan, some of whom it held without trial at the American navy base at Guantánamo Bay, Cuba. It had directed the National Security Agency to wiretap on domestic soil without the court orders required by the Foreign Intelligence Surveillance Act (FISA). In the campaign and in his early days as president, Obama had vowed to chart a new course.
“To overcome extremism, we must also be vigilant in upholding the values our troops defend, because there is no force in the world more powerful than the example of America,” Obama had said a year earlier as part of his first address to a joint session of Congress, in February 2009. “And that is why I have ordered the closing of the detention center at Guantánamo Bay and will seek swift and certain justice for captured terrorists, because living our values doesn’t make us weaker. It makes us safer, and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.”6
But if Obama’s words had seemed clear, his actions proved to be murky. In his first weeks as president, Obama had already started to assemble an ambiguous record on the security state he had inherited from Bush. He banned torture-but his new CIA chief said the agency would continue to use extraordinary rendition, the practice of seizing terrorism suspects and transferring them to the custody of third countries for questioning outside the criminal process, relying on diplomatic assurances that they would not be mistreated. He promised greater transparency-but his Justice Department had already twice reasserted the state secrets privilege to block pending lawsuits, one involving CIA torture practices and the other challenging the National Security Agency’s warrantless surveillance program. He ordered the prison at Guantánamo closed-but his cabinet nominees had testified in their confirmation hearings that it was, nevertheless, lawful for the military to imprison al-Qaeda suspects without trial under the laws of war. He closed the CIA’s black-site prisons-but the CIA’s drone strikes in Pakistan had continued. And he halted Bush-era military commission trials at Guantánamo-but he left the door open to potentially reviving them after an overhaul of the rules, and he later did just that. In short, having promised change, the new president seemed to be delivering something more like a mere adjustment-a right-sizing-of America’s war on terror.
As Obama’s team was still drafting that first address to a joint session of Congress in early February 2009, I called the White House and said I was planning to write about what appeared to me to be a surprising degree of continuity between Obama’s emerging national security legal policies and those he had inherited from Bush. I asked if I could speak with someone about it. Obama’s new White House counsel, Greg Craig, invited me to his office in the West Wing. I had first met Craig in the summer of 2008 at a launch party for a book about the CIA torture program, ‘[e Dark Side: ‘[e Inside Story of How the War on Terror Turned into a War on American Ideals, by Jane Mayer of the New Yorker. With a shock of white hair, a ruddy face, and an energetic manner, Craig had been President Bill Clinton’s defense lawyer during the Monica Lewinsky impeachment scandal, but his first love was foreign policy and national security issues. When many people had thought Senator Hillary Clinton was a lock for the 2008 Democratic presidential nomination, Craig was among those who broke with the Clintons to become an early and senior campaign adviser to Senator Barack Obama. He had hoped to be made secretary of state, but when Obama gave Clinton that job, Craig ended up as White House counsel instead. During the transition, he had been a key force in drafting Obama’s executive orders banning torture, directing the CIA black-site prisons to close immediately and the military prison at Guantánamo to close within a year.
Our appointment was for the afternoon of February 13-a brisk, sunny, windy day. I walked down from the New York Times’ Washington Bureau office past the statues and trees of Lafayette Square to the White House visitors’ gate on Pennsylvania Avenue, which has been closed to vehicles since the Oklahoma City bombing in 1995. Outside the fence, nine protesters wearing orange prison-style jumpsuits and black hoods stood with signs reading Shut Down Guantánamo and Free the Uighurs, a reference to some Chinese Muslims at the military prison who had been brought to Guantánamo by mistake and were stuck there because there was no good place to send them. Several months later, the Obama administration would badly mishandle an attempt to find a solution for the Uighur problem, damaging Craig’s standing in the White House.
Inside the West Wing, a press aide ushered me up winding stairs to Craig’s corner office. Denis McDonough, the chief of staff and head of strategic communications for the National Security Council, joined us. McDonough had been Senator Obama’s top foreign-policy adviser and would later be his fourth White House chief of staff. But as we sat around a coffee table, he let Craig do most of the talking. Craig made no apologies for any disconnect between the expectations created by Obama’s campaign rhetoric and his early governing decisions. He told me how during the transition after the election, the incoming Obama team had visited the CIA and spent extensive time talking with incumbent managers of Bush-Cheney administration intelligence and military programs. They were going to be slow, careful, and deliberate before enacting changes, he said. The Obama team’s decision-making process about what to do with the counterterrorism structures Bush had bequeathed to them, he added, was not “shoot from the hip. It is not bumper sticker slogans.”7
Following the interview, I drafted a story reporting that despite the early flurry of high-profile executive orders on issues like torture, “the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda,” which was “prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.”8
The Times printed the story on an inside page, but it attracted widespread attention on the Internet thanks in part to a lengthy column written about it by Glenn Greenwald, then a prominent Salon blogger on civil liberties and secrecy issues. I had corresponded with Greenwald since 2006, when he took an interest in articles I had written about Bush’s use of signing statements to claim a right to bypass new laws; in 2013, Greenwald would evolve from a commentator into a journalist after the former intelligence contractor Edward Snowden leaked him archives of top secret documents about surveillance programs. Back in February 2009, Greenwald highlighted my story as interesting but respectfully disagreed with my analysis, writing: “While believing that Savage’s article is of great value in sounding the right alarm bells, I think that he paints a slightly more pessimistic picture on the civil liberties front than is warranted by the evidence thus far (though only slightly).”9 But six months later, Greenwald had changed his mind: “In retrospect, Savage was right and I was wrong about that: his February article was far more prescient than premature,” he wrote in July 2009.10
Indeed, what Obama’s recalibration would add up to was subject to wildly divergent early interpretations. As Obama’s first year wound on, some Bush-Cheney administration veterans, notably Cheney himself, focused on what had changed. They accused Obama of not really believing the country was at war with al-Qaeda and said he was making the country less safe. But other conservatives and Republicans focused on what had stayed the same. They crowed that Obama had vindicated the Bush-Cheney administration, revealing that much of the Democratic criticism of the previous president-including Obama’s own campaign rhetoric-had been empty partisanship.
On the other end of the spectrum, some liberals and Democrats also focused on those things that had changed. While celebrating Obama’s departures from Bush policies, they also tended to accept what was staying the same, changing their minds about policies they had opposed when Bush instituted them because Obama now said those policies were necessary and they trusted him more. But other liberals, like the American Civil Liberties Union, pointed to the places of continuity and accused Obama of betraying his promises. An anti-Obama left began to take shape, denouncing Obama for institutionalizing and normalizing aspects of the Bush-era security state by creating bipartisan consensus over what had previously been subjects of dispute. This movement would join forces with libertarians on the right, as the anti–Big Government sentiments that had been quiet under Bush reemerged within the Republican Party now that a Democrat was president.
None of these views, of course, reflected what Obama and his legal team understood themselves to be doing. During my early meeting with Craig, Obama’s top lawyer insisted that the new administration’s early signs of caution about changing some Bush policies should not be interpreted as meaning that Obama had embraced Bush’s view of his powers or the world.
“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”
3. The Underwear Bomb
Ten months after that meeting, when Abdulmutallab injected the chemicals into the bomb hidden in his underwear, Mike Zantow was sitting just behind him in row 20.11 For the past decade, Zantow had been working abroad as a military contractor for DynCorp International, supervising the repair of U.S. Air Force equipment being used in Iraq and Afghanistan. He was now returning home to visit his sick mother. Zantow later recalled that he had heard a “large pop” like a “very large firecracker.” It was not immediately clear where the sound had come from. The whole plane grew quiet as everyone tried to figure out what was happening. Then, after about half a minute, the passenger sitting next to Abdulmutallab cried out, Hey, dude, your pants are on fire! A flight attendant hurried up to investigate and the man reiterated, This guy’s pants are on fire! Zantow looked over the seat back and saw smoke rising from Abdulmutallab’s “lap area between his legs.” The Nigerian man appeared numb and displayed no awareness of what must have been searing pain.
The passengers pulled the passive Abdulmutallab out of the seat-Zantow grabbing his right arm-and laid him flat on his back on the floor of the aisle, exposing the burning and bulky underwear. As people screamed in panic and confusion throughout the aircraft, several passengers tried to smother the flames on his body, one of them using a hat, but the chemical fire needed no oxygen and blazed on. Finally two flight attendants, Lamare Mason and Richard Cho, grabbed fire extinguishers and sprayed Abdulmutallab and the area around seat 19A. The fire went out. The two attendants pulled up the still-unresisting Abdulmutallab and walked him, in a headlock and shuffling with his pants around his ankles, to the front of the aircraft, where they sat him down in seat 1G, removed his pants and shoes, and covered him with a blanket as the pilot began a steep emergency landing into Detroit Metropolitan Airport.
It was 11:44 a.m. Just moments had passed since the pop and fireball. Eight minutes later, the plane was on the ground in Detroit. As it sat on the tarmac, Customs and Border Protection officers came on board to investigate what they had been told was a firecracker incident. They found instead a man who was naked from the waist down, his thighs and genitals severely burned. Holding the barefoot Abdulmutallab under the armpits, they helped him stagger off the plane toward a Customs holding cell, the blanket still wrapped around him. The young Nigerian appeared to be in shock from the physical pain and adrenaline rush mixed with sheer surprise at finding himself still alive.
A clue to Abdulmutallab’s passivity and mind-set may be found in his later statement to FBI interrogators that in his view, the fact the bomb had failed to detonate “was merely evidence that it was not his time to die.” God, he decided, likely wanted to purify him further before he would be ready for martyrdom; the event, therefore, had turned out to be a “possible test of patience imposed on him by God.”12 Yet Abdulmutallab was remarkably candid as they walked away from the 289 people he had attempted to kill, the agents later told their law enforcement colleagues.
What’s going on? one of the Customs agents, Marvin Steigerwald, asked him. What were your intentions on the flight?
To bring down the airplane, Abdulmutallab replied.
Who are you involved with?
Where did you get the device?
Yemen, in the Middle East.
Who are you involved with? Steigerwald again asked.
I’m with al-Qaeda, Abdulmutallab again replied.
4. Obama’s Ambiguous First Year
The war against al-Qaeda in the first year of Obama’s presidency confounded easy pigeonholing. As the months unfolded, Obama and his legal team added check marks on both the “change” and “continuity” sides of the ledger of how they were dealing with the conflict, drawing criticism from both the Left and the Right. The president’s team, pincered from both flanks by accusations and condemnations about his continuity and about his changes, rejected each side as cynical and wrong in its own way.
Dismaying liberals, Obama had refused calls for a “truth commission” to investigate Bush-era torture and surveillance programs, saying the country should look forward and not back, and Attorney General Eric Holder declined to launch a criminal investigation into CIA torture techniques that the Bush Justice Department had approved as legal. But, dismaying conservatives, Holder did reopen criminal investigations into instances of torture and detainee abuses that had gone beyond Justice Department guidance; his critics said he was on a witch hunt and would make the agency risk-averse, endangering the country.
Bush had deemed three American terrorism suspects-two of whom were U.S. citizens and one, a Qatari who was arrested while lawfully in the United States on a student visa and so qualified as American for legal purposes -“enemy combatants” and placed them in indefinite military detention without charges. One was still in a military prison when Obama took office, and the new administration quickly transferred him to the criminal justice system for prosecution before a civilian court, making clear that there would be no more military detention for Americans. But Obama also fought efforts by foreigners imprisoned without trial at Bagram Airfield in Afghanistan to win the right to bring habeas corpus lawsuits challenging their wartime detention. Otherwise identical prisoners being held without trial at the Guantánamo prison had those rights thanks to a 2008 Supreme Court ruling, which Senator Obama had praised at the time.
In June, the administration transferred a Tanzanian Guantánamo detainee, Ahmed Ghailani, to the Southern District of New York to face trial for his role in al-Qaeda’s bombings of American embassies in Africa in 1998. Following that, in November, Holder announced that Khalid Sheikh Mohammed, also known as KSM, and four other high-level Guantánamo detainees accused of aiding the 9/11 attacks would also be brought to New York for trial before a civilian court rather than a military commission. Civil liberties advocates cheered this decision as restoring the rule of law, but many Republicans decried it as returning to a pre-9/11 mindset of dealing with terrorism as crime, not war. Even some Democratic officials from New York, who had not been told ahead of time, worried about the security implications of a trial in a federal courthouse in Manhattan. But that same day, Holder also approved reviving the military commissions system in order to prosecute several other detainees, including Abd al-Nashiri, a Saudi accused of helping to engineer the bombing of the USS Cole in 2000. By endorsing tribunals as a legitimate alternative venue for prosecuting terrorism cases, the administration muddied the principle it was trying to establish-why not then use them for KSM too, allowing the trial to be held at Guantánamo?-and helped cement a continuing role for them.
Meanwhile, tensions arose within the new Obama team. Craig repeatedly clashed over tactics and priorities with Obama’s first White House chief of staff, Rahm Emanuel, and was forced out by the end of the year. Other members of the Obama legal team, while sharing similar worldviews, found that even they disagreed about crucial details, like how much contact with al-Qaeda was necessary to make someone eligible for indefinite detention without trial and what kinds of charges were legitimate for tribunals.
It was around this time that a senior member of the Obama legal team told me that governing had turned out to be more complicated than criticizing from the private sector or campaigning. The lawyer noted that the administration had taken over in the middle of Bush’s mess, which constrained their policy choices-it was not like they were starting with a blank slate on the morning of September 12, 2001, able to put in place what they saw as the “right” policies. They could not un-invade Iraq and un-torture prisoners, for example. Indeed, they found themselves wardens to some detainees at Guantánamo who could not be prosecuted because the government had obtained its evidence against them through torture or because they were not linked to any specific terrorist attack. Yet the solution suggested by some liberals and human rights activists-release those who could not be charged-was hard to swallow. It seemed genuinely likely to the Obama officials that some of those detainees might kill innocent people if freed. Going forward, there would be no additional such prisoners because the Obama team was not going to torture anyone and because anti-terrorism laws had been expanded after 9/11 to cover more types of activity. But that left unresolved the dilemma of finding a responsible disposition for those it had inherited.
This official urged giving the administration more time to slowly turn the ship of state toward where it should have been headed in the first place. But that Christmas there arose a great storm.
5. First Responders
Andy Arena, the head of the Federal Bureau of Investigation’s Detroit field office, felt his cell phone buzz as he was out in his driveway discarding boxes from a morning spent unwrapping presents. It had been the first Christmas in years that his extended family had gathered together. Now, interrupting the family day, an assistant was texting him.
Hey, boss, there’s been a disturbance on an incoming flight. Possibly a passenger lit a firecracker.
Arena texted back: Get me more facts on that.
Back inside his house, he told his wife he was going to run out to the airport, which was about a fifteen-minute drive away.
“People have asked me about that, why not wait to find out more?” Arena later said. “The answer is twenty-two years of experience. Something in my gut told me this was not right. Something just didn’t sound right.”
Arena had worked his entire career as an FBI agent after graduating from law school in 1988, taking charge of counterterrorism programs for the Detroit field office, six months before 9/11. After the terrorist attacks, he was promoted to chief of the international terrorism operations section at FBI headquarters, then, a year later, elevated to be a top counterterrorism aide to FBI director Robert Mueller. In 2007, Arena took over the Detroit office, returning to the metropolitan area where he had been born and raised. Now, as he barreled toward the airport, Arena called Jim McJunkin, the head of the FBI’s counterterrorism division. One thing you learn in the FBI: you don’t want your bosses seeing something on CNN they didn’t already know about.
McJunkin was at his home in a Washington, DC, exurb in Northern Virginia. His family had just finished a late Christmas brunch, he and his wife savoring the fact that their children were old enough now to let them sleep in, and they were moving into the living room to open presents. Arena quickly filled McJunkin in. Arena would remember the conversation as short and basic. McJunkin said they discussed in some detail what would happen when Arena arrived at the airport. Make sure the other agencies with roles in air security and counterterrorism are alerted and kept up to speed with developments. Isolate the passengers. Isolate the luggage. Keep the plane locked up so that an evidence team can go through it. Make sure we talk again before you make any decision about when and how to interview the suspect.
McJunkin then called his boss, Art Cummings, a top official at the FBI’s national security branch. During the workweek, Cummings lived on a twenty-three-foot sailboat in Annapolis, Maryland, which cost him only $3,500 a year in slip fees and allowed him to work long hours without uprooting his wife and teenage kids from their home in Richmond, Virginia. But he was home for Christmas, a turkey was in the oven, and guests were coming for dinner. He would not be able to share it; Cummings grabbed his go-bag, already packed with toiletries and a change of clothes for just such an emergency, and headed north on Interstate 95 to Washington. On the way, he talked to McJunkin again; the FBI was fighting off efforts by other agencies, particularly the Department of Homeland Security, to interrogate Abdulmutallab. A decade into the war on terrorism, the FBI had deep experience in national security intelligence interrogations, and Cummings was determined to keep control of it. He placed a series of other calls, including one to Mueller, who told him to make sure John Brennan, Obama’s top counterterrorism and Homeland Security adviser in the White House, was in the loop.13
Cummings also called Michael Leiter, the director of the National Counterterrorism Center, a clearinghouse for terrorism-threat information. Energetic and sarcastic, Leiter was a former navy pilot and a former president of the Harvard Law Review – a prestigious position he had held nine years after a young Barack Obama had had it. Leiter later became a federal prosecutor and then a staffer on a presidential commission that made recommendations for reforming the intelligence community after it had inaccurately concluded that Iraq had weapons of mass destruction. In 2007, Bush put Leiter in charge of the National Counterterrorism Center. Soon after, Leiter had briefed Senator Obama about terrorism-policy matters, at which time he made a pitch for having the government put greater emphasis on countering the ideology that radicalizes people and turns them into terrorists. Obama liked what he heard and kept Leiter in place after he took over the White House. Leiter helped run the weekly “Terror Tuesday” afternoon meetings at the White House Situation Room in which President Obama and his national security team-the heads of military, intelligence, and cabinet agencies-focused on high-level counterterrorism-policy issues. Throughout his first year in office, Obama listened attentively at these briefings but tended to say little, Leiter told me. Protecting against terrorism was important, but it was one ball among many being juggled. Others included winding down the war in Iraq and sending a surge of additional ground troops to Afghanistan in an effort to fix the war there, trying to pull the economy of its banking crisis free fall, confirming a new Supreme Court justice, and-the top domestic-policy goal-enacting legislation for a sweeping overhaul of the nation’s health-insurance system.
When his phone rang that morning, Leiter was painting the basement steps of his Northwest Washington, DC, home. He was Jewish, so there were no presents, but he had plans to join the family of his new girlfriend-and future wife-for Christmas dinner. Now, he carefully put down the brush so the white paint would not spill and picked up the phone. Cummings told him there was a report that someone on a Detroit-bound international flight had tried to set fire to a plane or had set off firecrackers. The early details were sketchy, but, Leiter later said, “Art and I had gone through enough of those that you know which ones sound silly and which ones sound real. This one didn’t sound silly.”
Leiter jumped into his gray Acura and headed across the Potomac River to the National Counterterrorism Center, located in one of the two main buildings at an office park called Liberty Crossing. The other building housed the Office of the Director of National Intelligence, another bureaucratic creation of the post-9/11 reform era, intended to be a single head of the other sixteen spy agencies in the United States government. From the street, the complex is anonymous; at the entrance, there is only a large sign reading 1500 Tysons McLean; a driveway disappears in a curve behind trees and a knoll that hides the armored gates, lurking guards, and other security measures designed to prevent unwanted visitors from reaching the parking lot. But viewed from above, there is nothing subtle about Liberty Crossing: the footprint of the two buildings creates a gigantic L and X.
Because al-Qaeda had a history of attacking in waves, the first priority for Leiter was to figure out whether there were other planes about to be bombed. At that moment, there were 128 flights in the air heading to the United States from Europe. Within ninety minutes of the attack, the Federal Aviation Administration notified all the pilots to take special precautions. At airport screening areas in North America and in Europe, new security measures were swiftly put into place, including more intrusive screening of carry-on luggage and passengers’ bodies and the deployment of bomb-sniffing dogs and behavioral specialists in plainclothes to search for signs of trouble.14 Then the focus shifted to Abdulmutallab himself-and just what had gone so wrong.
6. Withholding the Miranda Warning
When Arena reached the Detroit airport, he was dismayed. The plane should have taxied to a special hangar used for hijackings, in case there was a bomb-or other bombers-on board and to keep the passengers and luggage isolated to preserve potential evidence. Instead, it had taxied right up to the terminal, and a gate bridge had been extended to it. The passengers had all gotten off the plane. While their carry-on luggage was still in the overhead bins, the checked bags had been offloaded. The passengers were still there; several hundred people milled around. The toilet tank had been emptied, losing, it would turn out, some of the bomb-related packaging material Abdulmutallab had flushed as he was getting ready for the attack.
Adding to the chaos, a bomb-detection dog sweeping the checked luggage signaled a hit. The agents immediately evacuated that part of the terminal, herding the mass of passengers away and trying to keep them together and not let them talk with others before they could be interviewed. Meanwhile, Arena later recalled, two more inbound flights from Amsterdam had reported disturbances on board.
FBI agents searching the plane found the package of the intended primary charge, PETN, behind seat 13B. The badly scorched plastic explosive had fallen, unnoticed, out of Abdulmutallab’s ankled pants as the flight attendants were hustling him forward. At the time, federal officials offered the public only oblique explanations of why the bomb had failed, suggesting there had been some kind of unspecified design flaw. According to Arena, there were two hypotheses that seemed most plausible to investigators, both stemming from the numerous days leading up to the attack that Abdulmutallab had been continuously wearing the device as underwear. One was that the chemicals needed be tightly packed to be effective, and they had likely loosened up. The other was that the device had soaked up days of sweat, and the moisture had interfered with the intended chemical reaction.
But the blaze had been enough to burn Abdulmutallab badly. Steigerwald, the Customs agent, had quickly decided to get him to the University of Michigan hospital, which has a top trauma and burn center and is located in Ann Arbor, a short drive west of the airport. Arena sent two experienced agents along with him to keep tabs on events and talk to the would-be bomber if it became possible. One of the accompanying agents, Timothy Waters, was a counterterrorism supervisor in the field office and ex-military; as a bureau agent, he had spent time overseas doing battlefield interrogations. The other, Theodore Peissig, was the head bomb expert for the field office. They joined Steigerwald to watch as Abdulmutallab was given high doses of the painkiller fentanyl so his burns could be debrided and dressed.15 The damage to Abdulmutallab’s genitals was grotesque.
Boss, there is nothing worse we could do to this guy-waterboarding, nothing, Waters told Arena.
Meanwhile, Arena and McJunkin discussed over the phone an issue that would erupt into intense and sustained political controversy: whether and when to read Abdulmutallab the Miranda warning. Arena and McJunkin agreed at that stage that the agents should not read the warning to him before asking questions.16 Cummings had emphasized the same thing to McJunkin in their early phone calls.
The warning comes from a 1966 Supreme Court case, Miranda v. Arizona. It arose during a time of growing concern that the police might be coercing poor and uneducated prisoners into incriminating themselves, contrary to their Fifth Amendment rights, or, worse, inducing false confessions. The liberal Warren Court ruled that for a suspect’s statements in police custody to be admissible as evidence, he must first have been informed that he had rights to remain silent and have a lawyer present. Contrary to popular belief, there was no requirement that police give the warning before asking questions, but if they did not, the suspect’s answers could not be used in court. And in a 1984 case called New York v. Quarles, the more conservative Burger Court had carved out an exception to Miranda. The Quarles rule allowed prosecutors to use as courtroom evidence any answers a just-arrested suspect gave to police in response to questions about immediate threats to public safety-in that case, where in a convenience store the suspect had hidden his gun-even if he had not yet been informed of his rights.17
By then, Abdulmutallab had been in custody for several hours, so there was a risk in questioning him without first reading him the warning. If he confessed, a defense lawyer would surely argue that the Quarles window had closed, and a judge might throw out the confession. Still, under the circumstances, it seemed likely that a judge would still deem his statements to fall within the public-safety exception. And even if the judge ruled them inadmissible, they had plenty of other evidence-eyewitnesses on the plane, the remnants of the bomb, including residue on the suspect and on the seats and passengers around him, and his burned lap. The priority was to find out who sent him and, especially, whether other bombings were imminent.
“We had to assume he wasn’t the only attacker in the air,” McJunkin said. “We had to assume there were other planes still flying with bad guys on them, and the chances were good if they were all trained and equipped and instructed by the same group-we didn’t know who they were yet-there would be knowledge in his head about who they were and where they were. We clearly had a Quarles exception, and we decided to go ahead and do the initial interview without Miranda.”
The FBI thought it was aggressively pushing the envelope by withholding the Miranda warning. But soon the Obama administration would find itself accused of not going far enough.
7. Unconnected Dots
Meanwhile, in Washington, national security officials were frantically trying to understand what was happening. The nerve center of the effort was Liberty Crossing, where Leiter was soon joined by McJunkin. The staff members there struggled to set up a secure video teleconference in the main conference room at the National Counterterrorism Center, which had a dozen television screens. But the technology was glitchy, and for ninety minutes they were unable to get everyone on the same video conference call. Moreover, most of the other agencies-including the White House, Central Intelligence Agency, Department of Defense, Department of Homeland Security, Transportation Security Agency, and National Security Agency-were represented at first only by the low-level officials who happened to be on duty on a holiday morning.
Soon more senior officials, including John Brennan, Obama’s top counterterrorism adviser at the White House, replaced them. A career intelligence professional who projected confidence, Brennan, then fifty-five, had grown up in New Jersey and joined the CIA out of college. Earlier in his quarter-century career, he served as station chief in Riyadh, where he developed close personal ties to the Saudi intelligence agency. Rising quickly, he returned to Washington and became a daily briefer to President Clinton. During the first term of the Bush-Cheney administration, he had been chief of staff to CIA director George Tenet, then served as the first director of the newly created National Counterterrorism Center. Brennan left the government in 2005 and ended up becoming a top adviser on counterterrorism issues with Obama’s presidential campaign. Once elected, Obama wanted to make Brennan his CIA director, but liberals saw Brennan as tainted by his association with the agency during the period in which it had established secret prisons and tortured al-Qaeda suspects. In a sign of the influence that rights groups had at the start of Obama’s presidency, he bowed to that furor and instead made Brennan his top counterterrorism adviser in the White House, a position that did not require Senate confirmation. (In 2013, after winning a second term, Obama installed Brennan at the helm of the CIA after all.)
That Christmas Day, after getting to the White House, Brennan took control of what became a daylong, continuous secure teleconference. Information trickled in. As it became clear that there had been a bomb, analysts pulled the flight manifest and began running variant spellings of Umar Farouk Abdulmutallab through their databases, trying to dig up whatever they could-who he was, where he came from. After they learned that he had been a student in England for several years, they got Scotland Yard on the phone.
Soon, a more troubling cascade of information began. In the preceding weeks, intelligence agencies had picked up rising “chatter,” meaning vague indications that lacked explicit details, that some kind of terrorist attack was coming from the Yemen branch of al-Qaeda, dubbed al-Qaeda in the Arabian Peninsula (AQAP). But analysts had assumed it would be an operation in the Middle East.See chapter 6, section 1. Now, the CIA reported that its files showed that on November 18, Abdulmutallab’s father had walked into the American embassy in Nigeria and told the CIA station chief that he was concerned about his son, who had become an increasingly radical Muslim and was now in Yemen.18 At that time, a CIA official had entered Abdulmutallab’s name in a large database used to track basic tips about terrorists, but no one had nominated him for the terrorist watch lists. That step might have subjected him to extra physical scrutiny when passing through security at the airport in Amsterdam or even prevented him from boarding a flight to the United States. Because of a misspelling of Abdulmutallab’s name, the State Department did not realize he had an active multi-entry visa to travel to the United States-Abdulmutallab had visited Texas in 2008-and so his visa had not been revoked. The CIA had also written a biographical report on Abdulmutallab after hearing his father’s account, but it did not distribute the report to the wider intelligence community. And by day’s end, the NSA reported to the teleconference that it had found in its raw databases of intercepted communications discussions among members of AQAP about a Nigerian.See chapter 6, section 1.
8. Read Him Miranda
For Obama’s critics, the most important thing about the episode was not why the government had failed to detect the plot and to prevent Abdulmutallab from boarding the plane in the first place, but the decision to deliver the Miranda warning to the captive suicide bomber that Christmas night. This became a key political flashpoint, establishing a pattern for recurring partisan battles over the handling of newly captured terrorism suspects. But the full story of how that happened-who made the decision, why, and how it played out-has never been reported until now.
Back in Michigan, the primary nurse treating Abdulmutallab, Julia Longenecker, told the FBI agents that he seemed to be tolerating the painkillers and appeared lucid and oriented. The FBI agents went into the room to talk with him. Abdulmutallab told them he had gone to Yemen hoping to join in jihad and had met a man named Abu Tarek. After spending days in a house talking about Islam, he went on, they agreed Abdulmutallab would carry out an attack. Tarek also supposedly gave him the underwear bomb and told him how to use it. Abdulmutallab also reported his travel patterns and said he had been sent alone and was not aware of any other attackers. They spoke for about fifty minutes, and then the doctors took Abdulmutallab in for surgery.
So many officials from Washington were dialing Arena’s cell phone seeking updates that he could not place outgoing calls, and he eventually traded phones with one of his aides so he could talk. He told McJunkin what the agents told him Abdulmutallab had said. The agents believed the prisoner was lying about some events but telling the truth about other things. Officials were starting to see that the other inbound planes were not having problems, which dovetailed with Abdulmutallab’s claim to be the sole attacker. Both of the disturbances on the inbound planes from Amsterdam had turned out to be just rowdy behavior by drunken passengers, and the bomb-sniffing dog that had found something in the luggage taken off Flight 253 had apparently been reacting to strong-smelling spices that a man from India had packed in his luggage. But when CIA analysts started checking files regarding the other things Abdulmutallab had said, they came up empty. There was no intelligence about any terrorist-linked figure in Yemen who used the name Abu Tarek.
“We ran it by the CIA analysts-all the lights are on, everyone is fully engaged-and everybody is basically shaking their heads, ‘This doesn’t make any sense,'” McJunkin said. “That was the sum total of his non-Miranda interview.”
As Abdulmutallab underwent emergency surgery on his severely burned groin, the FBI had to decide how it would approach its next interview with him. The question was when the immediate threat to public safety had passed and, with it, the window in which law enforcement investigators could question a suspect without informing him of his Miranda rights and presenting him to a magistrate judge. It has never been reported who gave the order. It became routine for Holder’s critics to say that he did it, or at least that it was an ideological decision by the Obama administration. That is false. McJunkin, a career FBI official, made the decision, he and other officials told me.
It wasn’t an easy choice. Arena said he recalled arguing to FBI headquarters that the agents would be justified in squeezing in another round of pre-Miranda questioning after Abdulmutallab woke up from surgery. Still, as the hours passed, it became clear that Abdulmutallab hadn’t been lying about being the only would-be attacker that day. The Department of Homeland Security had identified every aircraft that took off around the same time as the Detroit-bound flight from Amsterdam, and all landed safely. The exception to the Miranda rule applied only to questions about immediate threats to public safety, and those threats appeared to have passed.
McJunkin said that he spoke to Cummings about the issue without resolution, but that he had the most extensive discussions with Sharon Lever, a career prosecutor in the Justice Department’s National Security Division who had worked on many terrorism cases. Lever was with him that day at Liberty Crossing and was keeping the head of the division, David Kris, in Boston at the time, up to speed.
Officials familiar with their deliberations said that Lever and McJunkin discussed several concerns. At that point, they did not yet know for sure what it was that had caught fire in Abdulmutallab’s underwear. He had said it was a bomb, but the lab would not be able to provide an analysis of the charred remnants corroborating that account until the next day. Moreover, it was not clear that the statements from the fifty-minute intelligence interview would be deemed admissible; the question of whether the public-safety exception could be stretched even that long was untested, with the added problem that the suspect had been on narcotic painkillers when he made most of those statements. It was possible that Abdulmutallab would name conspirators, which might be “a whole lot of people inside the United States,” McJunkin said. There was an outside risk that a judge might suppress such a statement and the information derived from it if he or she decided that the agents had delayed reading the suspect his rights for too long after the immediate public-safety concerns had dissolved. A judge might even throw out the entire case on grounds that the government had conducted itself outrageously. That latter concern, in hindsight, would look less realistic, but in the immediate high-pressure moment, it was among the things they talked about. Lever took the position that the bottom line was, he might give the FBI a useful statement, and why should they risk losing it?
The prospect of losing a key piece of evidence, McJunkin said much later, “was an outside shot, but as we were making the decision, we’ve got a terrorist who flew in a fully loaded commercial aircraft and tried to blow it up over Detroit. It was a big deal, a big case. We don’t want to make a silly mistake and have the whole thing come crumbling down.” McJunkin decided to give the order.
Read him Miranda, he told Arena.
The other government officials participating in the secure video conferences-including those from the White House, the Pentagon, and the CIA-were working to unravel the backstory of the plot and deal with the fallout. As part of that, the question turned regularly to what was next in Detroit. McJunkin told me he said to them that “we were going to proceed just like any other investigation,” which he said meant “we were going to read Miranda and see what we could get out of him.” No one objected. Nor did anyone suggest transferring Abdulmutallab into military custody instead, on the theory, later embraced by many Republicans, that Abdulmutallab would have become more willing to provide information if he were held at Guantánamo without a defense lawyer.
Still, there was some dissent within the FBI. Arena, who corroborated McJunkin’s account, recalled that he did not immediately agree with the instruction but eventually acquiesced.
“Basically it was Washington’s decision that we need to go back in and we need to Mirandize him,” Arena told me. “Personally, I argued against it at first. I told him we didn’t need it. ‘Well, the exigency is passed.’ That’s fine; I still don’t need this information to prosecute. But the decision was made: ‘Go back in there and use a clean team.'”
A “clean team” is a new set of interrogators who have not participated in the first round of questioning and don’t know the details of what the defendant said earlier. The use of a clean team is supposed to make it harder for a defense lawyer to argue that defects with the first interrogation tainted statements made during the follow-up interrogation. Arena picked a counterterrorism supervisor in his field office, John Schalt, and another counterterrorism agent to go in that evening around nine, when Abdulmutallab woke up from surgery. The plan, Arena said, was to make small talk-How ya doing? – establish a rapport, if possible, and then eventually and casually advise him of his rights so that it would not be disruptive to the flow of conversation. But as soon as the agents walked in, it was plain that Abdulmutallab’s window of cooperation, such as it was, had already closed.
“He was rocking in the bed, he was praying, and he looked at them with a stone-cold look and said something to the effect that ‘I’m going to kill you,'” Arena said his agents had reported. “They knew right there-one of the agents told me, ‘Boss, he got his jihad back on.’ There was no way in hell he was going to talk to us. I think what happened was, obviously the adrenaline wore off, he realized ‘I screwed up, I’m not with the seventy-two virgins, I’m in a burn center with the FBI, I’m screwed.’ So he reverts back to ‘You’re the enemy. I’m not going to tell you anything.'”
The agents attempted to chat with Abdulmutallab anyway, but it was going nowhere. They then read him the Miranda warning and had a magistrate judge brought in for an initial presentment hearing. Nine hours had passed since his arrest.19 It would be weeks before he started talking again.
9. The Accusation
On Christmas Day, in the first twelve hours after Abdulmutallab’s attack, the government and the media focused their attention on immediate operational concerns. The first phones to ring were those of national security professionals, each a part of the permanent government that exists largely out of the sight of ordinary voters and persists through changes in administrations. Over the next weeks, however, a political furor would envelop the failed attack. For Obama and his politically appointed national security team, the entire episode became the functional equivalent of the 9/11 terrorist attacks, which had transformed the Bush-Cheney administration. The result of the stomach-churning near miss of a mass murder over American soil and its political fallout would have profound implications for Obama’s legal policy, hardening his administration’s approach to counterterrorism. The ambiguous, ambivalent balance of the first year tilted; Obama’s policy choices that departed from Bush-era programs dwindled, and those that continued-or even expanded-Bush-era programs rose, from a fierce campaign of drone strikes whose targets would include an American citizen to the perpetuation of a sprawling and voracious surveillance apparatus.
Surveying Obama-era counterterrorism policies, a range of people across the ideological spectrum would voice, with escalating intensity, what became a defining accusation not just of the moment, but of the entire presidency: Obama was acting like Bush.
Chapter One: The Captive
5. Perry, Memorandum for the Court.
7. Author interview with Greg Craig, Feb. 13, 2009. Excerpts previously appeared in Charlie Savage, “Obama’s War on Terror May Resemble Bush’s in Some Areas,” New York Times, Feb. 18, 2009, http://goo.gl/PYqIlX.
8. Savage, “Obama’s War on Terror May Resemble Bush’s in Some Areas.”
11. U.S. v. Abdulmutallab, Jury Trial–Volume 4.
12. Perry, Memorandum for the Court.
16. Unless otherwise noted, the information in this section comes from author interviews of Andy Arena, Jim McJunkin, and Art Cummings.
17. New York v. Quarles, 467 U.S. 649 (1984).
18. In public reports about this missed opportunity, the Obama administration would say the father had talked to State Department officials, apparently from an instinct to keep secret anything involving the CIA.