FBI Director Refuses to Say Whether 9/11 Mastermind KSM Is 'Enemy Combatant'

By Melanie Arter | May 17, 2012 | 1:43pm EDT

FBI Director Robert Mueller testifies on Capitol Hill in Washington, Wednesday, May 9, 2012, before the House Judiciary Committee. (AP Photo/J. Scott Applewhite)

(CNSNews.com) – FBI Director Robert Mueller on Wednesday refused to tell a Senate committee whether confessed 9/11 terrorist mastermind Khalid Sheikh Mohammed (KSM) is an "enemy combatant."

The Bush administration designating a captured terrorists as "enemy combatants" so that they could be detained in a military prison and tried by a military commission or tribunal rather than detained in a civilian prison and tried in civilian courts.

KSM is being tried in military commission at Guantanamo Bay, along with four co-conspirators. The Obama administration recently reversed a decision to try him in civilian court in New York City after city officials objected to it and Congress refused to cover the costs of housing Mohammed on the mainland.

The 9/11 Commission described KSM as the "chief manager" and "mastermind" of al Qaeda's 9/11 terrorist attacks on the United States.

According to the Manual for Military Commissions, “Unlawful Enemy Combatant” means: “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)” or “a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”

During a Senate Judiciary Committee oversight hearing on the FBI, Sen. Lindsey Graham (R-S.C.) asked Mueller, “Do you believe Khalid Sheikh Mohammed is an enemy combatant?”

“I am not, I’ll go down the road just so far, but in terms of the designation, I think there are a number of factors that go into that, so I’m not going to say a yay or a nay,” Mueller said.

Graham asked Mueller whether he believed al Qaeda members could be classified as enemy combatants “since we have about 200 and something of them in Guantanamo Bay.”

“I believe so, but again, this is depending upon…” Mueller said, before Graham cut him off.

“We’re not holding people illegally there, are we?” Graham asked. To which Mueller replied: “No.”

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“Now if you caught Osama bin Laden or KSM, somebody like that tomorrow in the United States, would you suggest that the country take off the table military commission trials simply because the foreign terrorist was captured in the United States?” Graham asked.

Mueller said that would be a decision for the president to make and the FBI’s responsibility is to gather facts and intelligence.

Graham said he didn’t want to send a message to the world that “if you make it to America, all of a sudden you get a better deal than if we catch you in Pakistan.”

“I’m glad you to hear you say that, because I don’t think it’s policy of the Obama administration that foreign terrorists captured in the United States cannot be tried by military commissions and cannot be held as an enemy combatant and to Senator Lee’s line of inquiry, I don’t believe we want to send a signal to the world that if you make it to America, all of a sudden you get a better deal than if we catch you in Pakistan,” he said.

“When we capture someone affiliated, that we believe to be affiliated with al Qaeda in the United States, is it the Obama’s position, administration’s position, the FBI’s position that those individuals captured collaborating with al Qaeda in the United States must be mirandized?” Graham asked.

“There is no blanket rule on mirandizing individuals of al Qaeda in the United States,” Mueller said.

Graham said agreed that there shouldn’t be a blanket rule on mirandizing al Qaeda suspects in the U.S.

“Okay, this is very important. I think that’s a good answer. Sometimes, maybe it’s the best thing to do, sometimes maybe it’s not,” Graham said.

“I think the policy that’s been laid out is that intelligence comes first, and the Quarles exemption to the Miranda rule,” Mueller said.

Quarles refers to the public safety exception when it comes to Miranda rights. In the 1984 U.S. Supreme Court case of New York v. Quarles, the court ruled that there is an exception to the Miranda rule when questioning is designed to protect the public’s safety.

“How long under Quarles – which had to do with a domestic crime, not a terrorism case - how long can you hold someone under the Quarles case before you have to read them their Miranda rights?” Graham asked.

Mueller said that’s still an “open question depending on the circumstances.”

“Well I would suggest that the people we’ve held at Guantanamo Bay for years as enemy combatants could only be held that long because we designated them as enemy combatants. I don’t want to bastardize the criminal justice system,” Graham said.

“Once we use it, I want it to work the way it should, and I believe that if you capture someone in the United States and you’re going to charge them with a crime in Article 3 court – that’s your intent – that your ability to hold them without mirandizing them under Quarles is limited, but how long can you hold someone that you want to put in the criminal justice system without presenting them to a federal court under the presentment requirements?” Graham asked.

“You’re required to present them, generally, within the next 24 – 48 hours,” Mueller said. “I presume you’re talking about non-U.S. citizens.”

“Yes. So as I understand then they get a lawyer at presentment, don’t they? They have to have somebody helping them…” Graham asked.

“Depends on the circumstances, some have, some have not,” Mueller said.

Graham suggested that if terrorism suspects are prosecuted in military tribunals instead of the U.S. court system, there won’t be issues of Miranda rights and “presentment.”

“Okay, my point is that you’re taking a suspect who we believe is involved in terrorism. When you put them in the criminal justice system, you have Miranda issues, and presentment issues. If you keep them in the law of war system, holding them as an enemy combatant for intelligence-gathering purposes, you don’t have these problems, is that correct?” Graham asked.

“I’m not certain to what extent you can make that blanket statement, but and also I think there are downsides from doing it that are often overlooked,” Mueller replied.

“Do you know any requirement in the law of war to read an enemy prisoner their Miranda rights or provide them a lawyer when they’re held in military custody?” Graham asked.

Mueller said he wasn’t as familiar with the military code as Graham was.

“I would just suggest – and I won’t belabor this but – we’ve never in a war captured somebody and said, ‘Hey, you got a right to a lawyer, here’s your lawyer.’ We hold you to gather intelligence, because we’re trying to prevent the next attack, not prosecute you,” Graham said.

“So I’m gonna send you a series of questions, and I want us to understand as a nation that we’re at war. I want to treat people fairly. I believe in all of the above, but I am not going to sit on the sidelines and go back to a pre-9/11 model of where the criminal justice system is the only tool available to fight this war,” he added.

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