In an interview with 60 Minutes last spring, President Obama discussed the handling of captured terrorists and challenged those who claimed the "American system of justice was not up to the task of dealing with these terrorists."
Obama said: "I fundamentally disagree with that. Now -- do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter -- down the block? Of course not." President Obama ought to call Attorney General Eric Holder. In a five-page letter to Senator Mitch McConnell, Holder lays out in exhaustive detail exactly why these folks deserve Miranda rights and why his Justice Department will treat them like a shoplifter down the block.
Holder's letter responds to criticism of the Obama administration's handling of Umar Farouk Abdulmutallab, the Christmas Day bomber, from McConnell and other Republicans. Holder writes:
The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda.
I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law. I am equally confident that the decision to address Mr. Abdulmutallab's actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.
Nobody doubts that Abdulmutallab can be prosecuted. There were nearly three hundred people on the plane when he tried to blow it up. He lit himself on fire. Authories gathered his badly burned underpants and the components of the bomb. His prosecution was never seriously in question, which is precisely what makes the decision to Mirandize him quickly so outrageous.
But Holder's second claim is false. Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation -- questioning that took place before he was Mirandized. He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a "clean team," brought in to interrogate him after he was read his Miranda rights. The previous interrogation, while potentially helpful in obtaining intelligence, was "dirty" because he had not yet been Mirandized and thus unusable in his prosecution. The "clean team" began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.
Does Holder really mean to suggest that the U.S. government would not have obtained more -- and better -- intelligence if the FBI had continued to interrogate him on Christmas Day?
The U.S. intelligence community had put together a dossier of the intelligence collected on Abdulmutallab in the six months prior to the Christmas Day attack. The FBI interrogators did not have access to this information when they questioned him. Does Holder believe that there was nothing more to be learned by using this information? Holder argues that the FBI and Justice Department officials "did precisely what they are trained to do, what their policies require them to do, and what this nation expects them to do."
Holder's predecessor, Attorney General Mike Mukasey, disagrees. "Holding Abdulmutallab for a time in military custody, regardless of where he is ultimately to be charged, would have been entirely lawful—even in the view of the current administration, which has taken the position that it needs no further legislative authority to hold dangerous detainees even for a lengthy period in the United States," Mukasey wrote in the Wall Street Journal on January 7. "Then we could decide at relative leisure where to charge him—whether before a military commission or before a civilian court."
It's certainly cause for concern that Holder either does not recognize or will not admit the many mistakes in the handling of Abdulmutallab. But what's more disturbing is the fact that he is committed to handling future terrorists -- regardless of who they are or what danger the present -- in precisely the same manner.
"Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear," according to Holder. He also writes that the law and FBI policy require providing "Miranda warnings prior to any custodial interrogation conducted inside the United States," unless a "public safety" exception is permitted. (To make his point on a public safety exception, Holder uses the example of someone who has committed an armed offense that compels authorities to ask about the location of the gun.) Holder further argues that "there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney."
Follow that logic. If Holder is correct, the FBI could pick up al Qaeda's chief of operations in, say, Tampa, Florida, and unless he met the criteria for a public safety exception (i.e. had a gun), the FBI would be required to Mirandize him immediately and give him a lawyer. So someone with detailed and intimate knowledge of al Qaeda -- its leaders, its finances, its recruitment, its training and, yes, its future operations -- would be told he has the right to remain silent and provided counsel.
Holder seems to understand that this is a problem. So his letter seeks to reassure: "While in some cases defense counsel may advise their clients to remain silent, there are situations in which they properly and wisely encourage cooperation because it is in their client's best interest, given the substantial sentences they might face."
It's no wonder that Holder couldn't answer Lindsey Graham's question at a hearing last fall about whether the U.S. government would be required to Mirandize Osama bin Laden if he were captured. Holder's answer: "That all depends." Because if bin Laden were apprehended in the United States -- to take the logic to absurd lengths -- the FBI would read him his rights and get him a lawyer.
So what about Obama's words to 60 Minutes last spring. "Do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter-- down the block?"
The president said: "Of course not." His attorney general says: "Yes."