The Christmas Day Bomber: Where the U.S. Went Wrong

This is a rush transcript from "On the Record," February 12, 2010. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Is this a blunder with a huge cost? It has to do with our government and has to do with how we handled the Christmas Day bomber, the guy who tried to blow up more than 250 fellow passengers on an airplane. Earlier, former attorney general and judge Michael Mukasey went "On the Record."

(BEGIN VIDEOTAPE)

VAN SUSTEREN: Judge, nice to see you, sir.

MICHAEL MUKASEY, FORMER U.S. ATTORNEY GENERAL: Good evening, Greta. Thanks for having me.

VAN SUSTEREN: Judge, do you agree or disagree with Attorney General Holder's decision and the administration's decision to try the Christmas Day bomber in criminal courts, a civilian criminal court?

MUKASEY: Actually, Greta, I think that's really kind of a secondary question. It's not where he ultimately gets tried, it's what we can get from him. His value as a defendant is virtually nil.

VAN SUSTEREN: And is that because he has been tried as a criminal defendant or -- back me up a little bit because is -- is, you know -- why do you say that?

MUKASEY: Well, the fact is that he could be convicted in a criminal court. He could be convicted in a military tribunal. I venture to say that a first-year law student could try that case. The man committed his crime in front of 285 witnesses.

But he was sent here by al Qaeda in Yemen. He knows who trained him. He knows who prepared the bomb. He knows who else is involved. He knows a great deal. And the people who sent him know that he know' a great deal, as well. So it seems to me the thing to have done with him was to take him into custody immediately, have him questioned by people who knew something about the subject, and then worry later on about where he was going to be prosecuted.

VAN SUSTEREN: What was done...

MUKASEY: In his case, I think it's secondary.

VAN SUSTEREN: OK. Good. So what was done that you think was the wrong procedure to follow, and what would you advise in the future?

MUKASEY: I think there ought to be a protocol for terrorists who are seized in the United States and the -- or anywhere in the world. And the protocol ought to be that the first issue to consider is what they're worth for intelligence, and then have them questioned by people who know something about the subject, who can debrief them and question them, assuming they're willing to cooperate.

VAN SUSTEREN: The administration is now saying, and also the attorney general, is that he is cooperating. He is providing valuable information, that he is doing that now. Is there some lost opportunity -- I mean, I know that you object to the way it was done, but why?

MUKASEY: Sure. There's -- for two reasons. First of all, because we've already told the people that he's talking about that he's talking about them, which diminishes almost to zero the value of what he's giving us. Secondly, we've lost five weeks. It is no answer to dig yourself into a hole, take five weeks to dig yourself out of it, and then congratulate yourself and saying you're no worse off for having been in a hole for five weeks.

VAN SUSTEREN: So the second that this man, the wheels touched down in Detroit, what should have been done?

MUKASEY: What should have been done is he should have been taken into the custody of either the bureau, or ideally, the CIA, although, of course, the president has done away with the CIA interrogation program. So you need to get people, whether from the FBI or from the CIA working through the FBI, who know the subject and know something about al Qaeda and Yemen.

It doesn't really do a whole lot of good to have Mr. Abdulmutallab as the guy in the room who knows the most about al Qaeda in Yemen. You want to have somebody who knows something about it, as well, questioning him and who can double-check it, send it out to people in the field, get their view on it, and possibly come back to him for additional information, or to contradict what he says, if it turns out he's providing false information.

VAN SUSTEREN: Is it your belief that this administration, or this attorney general, is weak in his approach and putting us at a greater risk by virtue of the method that's being employed by this administration in this instance?

MUKASEY: I don't want to use inflammatory terms like "weak," and so on. I think it's a mistaken policy. I think you can't think about this as a criminal case. That's a pre-9/11 mindset. We prosecuted criminal cases before September 11. After September 11, the mindset should have changed. The paradigm should have changed.

And to go back to view each case as a criminal case, rather than as a wartime incident in which you're interested in gathering intelligence and then concerning yourself with prosecution later on, that's where I think the error is. And I don't want to start calling people names or saying they're weak and so on. I just think they're -- they've got the wrong policy in place.

VAN SUSTEREN: Well, I guess -- and I mean, I understand, and I'm not -- I wasn't suggesting to be a flame thrower or anything. But was -- if someone makes a mistake and we could have -- you know, we could have -- we could differ in how we think things should be accomplished. But if the -- if our difference of opinion, one creates a huge risk for us and one does not, that's very different. And are you saying that he -- that the current administration is just doing it a different way than you would do it, or this presents a real and imminent problem for our security?

MUKASEY: Well, if you tease this out and apply it in the future, then it's bound to present a risk. Back in the '90s, we had something called the Bojinka plot, in which al Qaeda planned to blow up several airliners over the Pacific simultaneously. We don't know that this guy wasn't either test flying a second edition of the Bojinka plot or perhaps one of many. We certainly didn't know that when he landed. And to treat each of these things as a one-off and simply as a prosecution could prove very dangerous.

VAN SUSTEREN: And in terms of this case, this investigation versus Richard Reid, I guess the administration would say, is that he was successfully prosecuted. But you're pointing back in terms of -- not so much at the actual prosecution, but at the arrest and information that can be gathered at that point of custody, right?

MUKASEY: Correct. But -- and I also think it bears mention that Richard Reid was arrested three months after 9/11. We didn't have in place the kind of protocols and the kind of procedures or the experience that we have in place now. And in retrospect, it may very well be that the treatment of Richard Reid was a mistake, but it certainly doesn't recommend repeating the mistake.

VAN SUSTEREN: Judge, thank you very much, sir.

MUKASEY: You're very welcome.

(END VIDEOTAPE)

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