It was Christmas Eve in 2009. (1) The passengers were anticipating the completion of an eight-hour trip from Amsterdam, and had just been told to put their seat-backs and tray tables in the uptight position. The flight attendants had prepared the cabin for landing and secured themselves in their jumpseats as Northwest Flight 253 made its final approach to Detroit Metropolitan Airport. One passenger, who was returning to his seat after an extended visit to the restroom, complained of a stomach ache and covered himself with a blanket. The routine nature of the landing procedure ended there. Passengers seated near the complaining, blanketed passenger--a man named Umar Farouk Abdulmutallab--began heating unfamiliar popping noises coming from his seat. (2) A small fire ignited, charring the wall panel and burning the blanket. (3) The infamous Christmas Day Bomber was attempting an act of terrorism right before their eyes. But the plastic explosives were kept from detonating when a brave passenger quickly subdued Abdulmutallab and extinguished the fire, allowing the pilots to safely land the airplane. (4)
The day seemed saved, but for law enforcement, the investigation had only begun. After taking Abdulmutallab into custody, the Federal Bureau of Investigation ("FBI") questioned him for about an hour before warning him that anything he said could be used against him in a court of law. (5) But the questions didn't stop. (6) Abdulmutallab had already given valuable information to agents: he was clearly working with al Qaeda, and agents needed to learn more. (7) Who had trained and funded him? Where were his contacts in the United States, the Middle East, and Europe; and how did they communicate? Agents struggled to elicit information from Abdulmutallab through reason, persuasion, intimidation, and negotiation, right up until December 26, 2009, when he was arraigned before a magistrate and given defense counsel. (8) At that point, all communication ceased, for, on the advice of his defense attorney, Ahdulmutallab refused to continue to cooperate with American officials. (9)
Thus began a process of pleading and bargaining with the FBI that lasted several months. Abdulmutallab eventually began to cooperate again, providing names, dates, locations, and procedures of al Qaeda, but by then it was too late. (10) Al Qaeda had undoubtedly learned of his betrayal and had had months to change its practices. (11)
Criticism erupted over the government's handling of the incident. Public officials argued that Miranda warnings should never have been read, the Central Intelligence Agency ("CIA") should have been notified, and that there should have been more time for questioning. (12) Did the FBI get it wrong? At the heart of this question rests a conflict between the need to gather intelligence to protect American soil and the need to criminally prosecute suspected terrorists who are apprehended in the United States.
Since the 9/11 terrorist attacks, the question of how to protect the nation against the threat of terrorism while respecting constitutional due process has been at the forefront of political debate. (13) Conservatives generally advocate for criminal proceedings that allow greater latitude in gathering intelligence, like military tribunals, in lieu of civilian criminal courts where such latitude would require judges to exclude exculpatory evidence on due process grounds. (14) Liberals diminish the urgency of gathering such intelligence and decry efforts to limit due process as unconstitutional and anti-American. (15)
However, both the Bush and Obama Administrations have guarded against the threat of terrorism by modifying or limiting the procedural rights available to suspected terrorists, generally with congressional support, either by channeling such suspects through the military tribunal system, or by constricting suspects' procedural rights in Article III courts. …