The trial of Umar Farouk Abdulmutallab began this week. He is otherwise known as the “underpants bomber” after he tried to explode a bomb hidden in his underwear while he was on a plane from Amsterdam to Detroit. There are several aspects to this trial that reflect on the idea that the US has an exceptional approach to counter-terrorism.
Firstly, Abdulmutallab is being prosecuted in a US District Court rather than a military commission. This can be offered as evidence that the Obama administration has shifted counter-terrorism policy back toward a common law enforcement approach. Indeed the DoJ has been successful in holding the to the line that the acts of terrorism taking place on Obama’s watch will be treated as crimes rather than acts of war. But we cannot say the war on terror has ended because of course the administration still claims a right to detain, prosecute and target certain terrorists as combatants. The Nashri prosecution and Awlaki killing are the most recent examples of this. In addition, the move to prosecute Abdulmutallab in a civilian court was condemned, particularly by on the right, shortly after his arrest in 2009. I blogged about this at the time. It suggests that any shift back to the law enforcement approach is far from consolidated.
The second point is related. As I noted in the my remarks on the Awlaki killing, John Brennan articulated a view that the war against al Qaeda extended beyond “hot” battlefields like Afghanistan. For this reason, it has been argued (see Jeffrey Addicott’s opinion), the targeting of Awlaki in Yemen was lawful because he was a combatant in an ongoing (borderless) war. Now, its claimed that Abdulmutallab (a Nigerian) was radicalised in Yemen. Had the US known about his intentions while he was in Yemen it is possible, on Brennan’s standards, that they would have targeted him as an enemy combatant with a Predator drone. It is also claimed that Abdulmutallab was radicalised while he studied in London. The argument for targeted killings includes the impossibility of arrest. Presumably this would not have applied if the US had found out about Abdulmutallab’s intentions while he was London.
The third interesting aspect of the trial is that he is charged with the attempted use of WMD. Now, this is a shift in the definition of WMD that potentially has profound implications. When we were talking about Iraq’s WMD we all understood that it was chemical, biological or nuclear weapons. Abdulmutallab had none of these. His ‘weapon of mass destruction’ was conventional bomb on a civilian plane. Now if the US claims a right of self-defence to unilaterally intervene in states that have or intend to get WMD, and if the definition of WMD is the nexus between conventional bombs and passenger planes then that is a proposed shift of the norm way beyond what was previously considered to be the case.