Over at Crime and Consequences, former federal prosecutor Bill Otis has this insightful analysis about the interrogation of the Christmas day bomber, who reportedly was given Miranda warnings and then stopped providing useful information shortly thereafter. Otis quotes the Washington Post’s editorial on the subject, which attacks the administration as follows:
UMAR FAROUK Abdulmutallab was nabbed in Detroit on board Northwest Flight 253 after trying unsuccessfully to ignite explosives sewn into his underwear. The Obama administration had three options: It could charge him in federal court. It could detain him as an enemy belligerent. Or it could hold him for prolonged questioning and later indict him, ensuring that nothing Mr. Abdulmutallab said during questioning was used against him in court.
It is now clear that the administration did not give serious thought to anything but Door No. 1. This was myopic, irresponsible and potentially dangerous.
Otis goes on to argue, quite persuasively to my mind, that the failure here was not a one-time, bureaucratic screw-up, but rather a larger strategic failure:
What the Post still fails to understand is that the administration’s “myopic, irresponsible and potentially dangerous” blunder in this case was less a result of one bureaucratic miscommunication than of the inherent confusion at the base of its thinking about terrorism and the law. As long as there is indecision about whether violent jihadists should be treated as standard criminals or as the illegal combatants they are, blunders like this are inevitable. The administration’s policy is not the nuanced approach the Post takes it to be. It is wishful thinking masquerading as a nuanced approach.
The analysis seems spot on to me. I can’t for the life of me figure out why as a society we would want to give Miranda warnings to such a high-value suspect like Abdulmutallab. While there is debate about the extent to which Miranda warnings reduce the overall confession rate (I think it is significant, while others disagree), surely we can all agree that in the context of Abdulmutallab’s interrogation such warning were not going to be helpful in obtaining information about, for example, where he trained and what other attacks might be planned.
Otis concludes by suggesting that this mistake is retrievable. Quoting Scott Johnson, Otis urges the Adminstration to get Abdulmutallab out of the civil justice system, so that further questioning can be pursued:
The United States Attorney can dismiss the indictment against Abdulmutallab and turn Abdulmutallab over to the armed forces of the United States. I see no reason why Abdulmutallab can’t be detained as an enemy combatant available for questioning as the president sees fit. Unless I’m missing something, it’s not too late to try to rectify the mistake.
This seems like perfectly sensible advice to me. Whatever one thinks about the ultimate place of trial for Abdulmutallab (civlian vs. military court, for example), the best place for obtaining information is clearly not to the civil justice system.
Dilan Esper says:
Of course, Professor Cassell led a movement to gut Miranda entirely in the 1990′s, arguing that it either should be overturned, had been overturned, or never prohibited non-Mirandized interrogations or interrogations after an invocation of the suspect’s rights anyway. (Some of Professor Cassell’s arguments were eventually rejected by the Supreme Court in Dickerson v. US.) So it’s not suprising that an established Miranda opponent would oppose giving warnings to anyone, including a terror suspect.
That said, Professor Cassell is also assuming something that probably isn’t true. Apparently, the suspect was interrogated and did give useful information, and this was confirmed in sworn congressional testimony. So unless Professor Cassell is claiming that a senior administration official perjured himself, I don’t see where he can assume that some grave disruption of the intelligence process occurred.
Finally, it’s worth noting that his same arguments could be deployed to argue against giving warnings to, say, a Mafia informant. Indeed, in ANY conspiracy investigation, you run the risk that someone might invoke their rights and clam up allowing the conspiracy to continue. So the question is, is there some reason other than they are teh big bad Muslims why we are specifically supposed to get our knickers in a twist about Al Qaeda?
January 25, 2010, 3:12 pmzuch says:
“… instead, we need to interrogate him with whatever means are at our disposal to get whatever information we can out of him.”
We do a fine job of trying and convicting terrorists. It’s not at all obvious to me that we’d have any difficulty in doing so here. Not to mention, there’s plenty of means of interrogation that don’t run afoul of Miranda. Reports are that Abu Zubaydah stopped co-operating after the heavies got involved.
Cheers,
January 25, 2010, 3:22 pmPaul Cassell says:
The issue is not whether some information was obtained from the suspect, but whether maximum information was obtained from the suspect. I don’t question the accuracy of the senior administration official’s testimony. My point is that its seem probable that more information could have been obtained in the absence of Miranda warnings.
January 25, 2010, 3:24 pmzuch says:
[Prof. Cassell]: As long as there is indecision about whether violent jihadists should be treated as standard criminals or as the illegal combatants they are….
Fallacy of bifurcation. And begging the question.
Cheers,
January 25, 2010, 3:29 pmMark Buehner says:
I don’t understand the confusion- this isn’t a glitch, its Obama policy. I’m not being flip, this guy was arrested on US soil and will undoubtedly be tried in the US civilian courts for civil crimes. Of course he will be Mirandized, if he weren’t THAT would be confusing. The idea that he might still be talking when given the full plate of rights of an American citizen in a civilian justice system is what’s odd. His lawyers are going to button him up, that’s their job.
Why should this be confusing? You can’t be a little bit pregnant. This is exactly what we signed up for when Obama made his belief in the matter clear and we (well, you) voted for him.
January 25, 2010, 3:32 pmruuffles says:
Well sure, more information could also have been obtained by threatening to crush his child’s testicles. Are you advocating we that?
Cassell seems to have forgotten his full-throated defense of the blackwater mercs and his smugness at their having gotten off on a “technicality.”
January 25, 2010, 3:38 pmOren says:
Did you level the same claim at Ashcroft when Richard shoe-bomber was mirandized? As far as I can see, underwear-bomber and shoe-bomber committed offenses that are factually indistinguishable and have received identical treatment.
January 25, 2010, 3:39 pmRPT says:
Of course this is a stock R/Con political response, but there seems to be no factual predicate for the “probably” here. One can always assert that would be the case if you could just apply one more turn of the screw to the witness. At this advanced stage of the interrogation/torture debate it seems to me that the factual presumption should be entirely the other way. What evidence is there otherwise?
January 25, 2010, 3:40 pmruuffles says:
BTW Cassell, where’s your repudiation of the Bush administration for doing the same (federal trial) for Richard Reid, the shoe bomber? Link please!
January 25, 2010, 3:41 pmruuffles says:
Cassell was nominated for DC in Sept 01, shoe-bomber hit in Dec 01, Cassell confirmed in May 02. Did Cassell put his self-interest above national security?
January 25, 2010, 3:43 pmzuch says:
Back in the dark ages, confessions were very important to the law. This was because convictions could only occur in the testimony of eye-witnesses (in some cases more than one) or confession in open court. This is reflected in part in the Constitutional requirements for conviction of treason. This made sense back then; they had no real skills at forensic sciences, and this was thought to provide reliability against unjust convictions. Only little niggle: Many crimes were not witnessed (or the only witness was dead). Thus the implementation of torture. Get the guy to confess, and you’re off to the races. Simple problem, simple answer.
But now we have — with our advances in surveillance, record gathering and keeping, and the wonderful tools of forensic science — many different means of convicting those that are guilty of crimes … and torture has fallen into disfavour (except amongst those that need it to get “confessions” for other reasons).
Is there any doubt that Abdulmutallab can be convicted of a crime that many people watched him attempt (along with the physical evidence)? We don’t need a confession to convict him. And given the case against him, getting him to co-operate in informing on others doesn’t require torture either. But that means getting him to co-operate, not trying to pull some slick “good cop, bad cop” deal that he will later disavow.
Cheers,
January 25, 2010, 3:47 pmMark Buehner says:
As far as i’m concerned they should be sharing a cell at Guantanamo swapping fashion tips. I dislike this mixing and matching and Ashcroft was just as guilty of it. Once you determine that somebody is such a national security risk that you aren’t going to set them free no matter what any civilian trial court says, all you’re doing is conducting a show trial. It shouldn’t make us feel any better.
January 25, 2010, 3:49 pmAnderson says:
I don’t see the hitch in having interrogators visit the guy, w/out counsel present, provided a “Chinese wall” is maintained re: use of national-security information in his prosecution.
That shouldn’t be too hard — security types and law-enforcement types tend to hate each other’s guts to start with.
January 25, 2010, 3:57 pmAnderson says:
Of course, Professor Cassell led a movement to gut Miranda entirely in the 1990’s, arguing that it either should be overturned, had been overturned, or never prohibited non-Mirandized interrogations or interrogations after an invocation of the suspect’s rights anyway
This is a creepy blog sometimes. I keep expecting Pat Buchanan to guest-blog.
January 25, 2010, 3:59 pmDilan Esper says:
My point is that its seem probable that more information could have been obtained in the absence of Miranda warnings.
And even if this should matter, it is rank speculation.
January 25, 2010, 4:06 pmMark Buehner says:
The guy just tried to commit suicide for his cause. What makes you think the prospect of jail time will make him flip over on his jihadi brothers?
You are correct that the typical ins and outs of our justice system don’t fit well, but take that to its logical conclusion. You aren’t deterring a suicide bomber by putting him in prison, and you aren’t punishing him by allowing him to be a living martyr to his cause potentially able to cheer-lead jihad. And you aren’t even demonstrating the superiority of our justice system, because in essence these guys AREN’T going free no matter what happens, and you can’t even say that of the worst serial killer imaginable.
January 25, 2010, 4:08 pmSo what’s the point?
Dave N. says:
I’m guessing because they always do it on Law and Order.
January 25, 2010, 4:08 pmzuch says:
Following the law, rather than “expediency”?
Cheers,
January 25, 2010, 4:12 pmMark Buehner says:
So again we are back to treating these guys as something other than subject to complete constitutional protections. We’re just drawing the line a little differently to make ourselves feel better.
January 25, 2010, 4:12 pmyankee says:
I think this proves too much. In the absence of Miranda warnings, couldn’t you (probably) obtain more information from any conspirator except those who refuse to talk at all? What makes the underwear bomber different from a drug dealer in this respect?
Your position is tantamount to opposing or gutting Miranda, which you’re free to do but isn’t going to convince anyone who doesn’t oppose the decision.
January 25, 2010, 4:13 pmbailey says:
So everyone thinks we got the maximum amount of useful information from this guy in 50 minutes and no one thinks that Miranda has no place in the detention of enemy combatants? I do agree that this is not a glitch or an accident but, instead, is just the normal result of the Obama Administration’s tactics.
January 25, 2010, 4:25 pmorca says:
Did the patriot who gunned down 8 people in Virginia last week deserve to be Mirandized?
January 25, 2010, 4:29 pmHarryEagar says:
If we would just go ahead and withdraw from the Geneva Convention, which has never worked to the benefit of any American prisoner (at least in Asia), then this discussion would be moot.
We could lock the guy up until his friends declare Religion of Peace on us, and make life with us seem much less pleasant to him than the prospect of death (and we could do that without torture).
January 25, 2010, 4:30 pmThe easy answer says:
The point of the Miranda warning is to get good press in the Washington Post and the New York Times. And one out of two is OK.
The way it works is, good press translates to good will. Some guy in Pakistan reads the local paper I guess, and says to his buddies over lunch later on, “Turns out the Zionist-Crusaders are not as bad as I thought. And, although the rule of law as the sons of pigs understand it is an infidel abomination and a violation of God’s revealed will, I’m impressed. Turns out, the Great Satan’s a great place and I’m rethinking my murderous rage towards the modern poison of Westoxification.”
January 25, 2010, 4:31 pmShelbyC says:
Was Reid read Miranda warnings? Link Please.
January 25, 2010, 4:31 pmRPT says:
We are asking for facts here. What is the source and basis of your contention that he was questioned for only 50 minutes and that he did not cooperate? Proof?
January 25, 2010, 4:34 pmShelbyC says:
I don’t understand why folks find this so controversial. Why would you ever Mirandize someone you want to interrogate if you can convict that person without using is statements? It’s not like we got a useful confession after Mirandizing him.
January 25, 2010, 4:34 pmzuch says:
IIRC, it was 24 hours…. Episode over, let’s move on.
Cheers,
January 25, 2010, 4:36 pmMark Buehner says:
Think about what this amounts to: we are wondering why when we tell people they have the right not to talk, they don’t talk. Come on.
January 25, 2010, 4:37 pmDJR says:
This goes in my “to be forwarded to the press should he ever be nominated again” file.
January 25, 2010, 4:37 pmNunzio says:
Miranda had been gutted a long time ago (and gutted after Dickerson).
Prof. Cassell’s argument in Dickerson was sound. While Congress would have power under Sec. 5, of the 14th Amendment to require a Miranda warning, the Court created that power out of thin air as a “prophylactic” measure. After Miranda, Congress specifically prohibited any such prophylactic warning, meaning they definitely were not interested in any such leglislation.
The Court never created a constitutional warning that police have to give individuals informing them that they have the right not to consent to a search under the 4th Amendment.
January 25, 2010, 4:38 pmrj says:
Hypothetical: A guy gets arrested for some sort of sort of violent disturbance on an airplane. The plane touches down, he’s taken into custody. At this point, it’s unclear whether this is part of a terrorist plot or just a lone wacko.
If you Mirandize, you can take him to a federal court and use whatever he says against him. That, plus the eyewitness testimony of everyone else on the plane, would put him away for a long, long time. Plus, Mirandizing a suspect doesn’t mean that he won’t give you any actionable intelligence – it’s a prophylactic, not a get out of jail free card. The criminal justice method is how we’ve convicted and locked up hundreds of terrorists before Bush started trying to get creative.
If you don’t Mirandize, you can deny him counsel, waterboard, send him wherever you want, detain indefinitely, etc. On the one hand, you may be able to get information about other plots or the organizational structure of the terrorist group to which he belongs. He may or may not have anything actionable or even new. He may just be a lone wolf. However, once he leaves the civilian justice system, he can’t go back in because it the whole prosecution has been tainted. Now you’re stuck choosing between pressing a court martial against a guy who may or may not be a part of a terrorist group – I honestly have no idea how that would work with a true “Army of one,” – or, if you were particularly harsh in interrogating the guy, he’s stuck in legal limbo without trial until who knows when.
In that case, I would chose Mirandizing our questionable terrorist and trading an unknown (and possibly non-existent) increase in the potential amount of new intelligence for the finality and unquestioned legality of the criminal justice system.
In the case of the underpants bomber, it may have been complicated by the fact that he was already on a watch list and we may have known him to be associated with a terrorist group. Still, it is by no means an open-and-shut case and tough-guy posturing does not make it so.
A possible solution: Allow authorities time between arresting and Mirandizing to show that he was part of a terrorist group, holding any pre-Miranda testimony in a “lock box.”
On a semi-unrelated note, can we stop being quite so terrified of Al Qaeda? They took “credit” for an incredibly amateurish, failed attempt to blow up an airplane. Where I work, you only get to take “credit” for things you’ve done right – seems like they’re scraping the bottom of the barrel. This reeks of desperation on their part.
January 25, 2010, 4:38 pmBen P says:
Maybe, maybe not.
I think it is important in this context that Miranda itself is not a constitutional right. It’s merely meant to safeguard constitutional rights, namely, the right not to be forced to give self-incriminating testimony.
If the testimony won’t be used to incriminate you, that right is inapplicable. If you’ve been granted full immunity you could possibly be hit with contempt for still claiming the 5th.
Even if Miranda is violated then properly administered and the suspect again confesses, the Evidence is sometimes, but not always thrown out. In that light, I agree that we’re still treading on rocky ground, but I don’t necessarily see it as a certainty that the constitution is violated if the cia (or whatever) guys ask him questions, and then the cops come in and Mirandize him and ask him questions. It’s just that anything the CIA guys recover absolutely can’t be used in a trial. The most troubling aspect about it is the same as the problem where the cops violate Mirada and then get another confession where it was complied, there’s the concern that as far as the suspect as concerned “the cat’s already out of the bag, so he might as well tell them again.”
About the situation in general, I do find the argument that these are essentially show trials troubling, but we’ve already basically said he wouldn’t be a full on “prisoner of war” (none of the other enemy combatants were given that status) so I think that a civillian trial is the lesser of two problematic solutions to trying someone. Remember, being a prisoner of war necessarily implies he’d be released once hostilities end. I don’t think we’re willing to allow that either.
January 25, 2010, 4:38 pmSammy Finkelman says:
He was. Several times. Here’s a story:
http://liveshots.blogs.foxnews.com/2010/01/25/does-reid-case-inform-abdulmutallab-case/
January 25, 2010, 4:41 pmShelbyC says:
Why? I just don’t get it? Does anybody think that Mirandizing him would have produced a usable confession? If not, why Mirandize him?
January 25, 2010, 4:41 pmzuch says:
Do you think this comes as a major surprise to anyone?
Cheers,
January 25, 2010, 4:45 pmHoward Gilbert says:
There are two questions that should be entirely separate. The first is how to investigate the incident and question the suspect. The second is whether to charge him with a crime or detain him as an enemy combatant. Now here is the punch line: Everyone who simply assumes they have the right answer to the second question (whichever choice they make) is a hopeless ideologue. You cannot answer the second question rationally without first investigating and none of us are privy to the investigation.
There is no requirement to Mirandize a criminal suspect. However, statements made without a Miranda warning are not admissible in a criminal proceeding. So to question him without a Miranda warning you either 1) have to toss out his statements and use only the enormous amount of existing evidence, the dozens of eye witnesses, the captured explosive device, the burns on the suspect, and get a conviction without a confession (if you cannot do this you better find a different line of work), or 2) have in place a staff of interrogators who are completely walled off from the criminal prosecution arm of the DOJ, so that absofrackinglutely nothing he says can ever directly or indirectly find its way into the prosecution.
The institutional incompetence here is that eight years after 9/11 the clowns in government apparently have not created an interrogation staff with the necessary institutional separation from prosecution personnel and databases, or they have not trained FBI agents on the ground to consider the possibility of a Miranda-less arrest followed by calling in such a staff to do the interrogation and compartmentalize the results.
If you arrest a suspect, do not read him a Miranda warning, and do not ask him any questions, there is some uncertainty about the status of anything he says spontaneously to the arresting agents. They may also have to be separated from the prosecution by an intermediary so that even spontaneous utterances after a Mirandaless arrest are kept from the prosecution.
An enemy combatant who dresses in civilian clothes and pretends to be a civilian for the purpose of conducting an act of sabotage is subject to the concurrent jurisdiction of both the civilian criminal justice system (as the civilian he pretends to be) and of the military (as the combatant he actually is). A civilian terrorist is a criminal subject only to the justice system. So while we can be sure going in that this would be bomber can be prosecuted as a criminal, it is possible that he can also be held by the military. Only after a thorough investigation can we determine which option is the best choice.
January 25, 2010, 4:46 pmzuch says:
I dunno. They may well have inflicted the damage they wanted to inflict. ;-)
Cheers,
January 25, 2010, 4:49 pmSammy Finkelman says:
It’s not a Miranda warning that stops an interrogation. Often, a person continues talking. It’s asking for, and more important getting a lawyer that does that. I think the legal rule now is that once a prisoner mentions a lawyer they are no longer allowed to ask him anything. The lawyer has a aright to see him and see what happens. And a lawyer will always tell him to shut up.
I think maybe in 2001, they were working on the idea that if someomne was not given a Miranda warning, then maybe the information could not be used IN COURT but it could be used for its intelligence and prevention and crime solving value in other cases, but in any case Richard Reid was given warnings but did talk.
The recent Fox story describes the situation like this:
<< Within five minutes of American Airlines Flight 63 landing in Boston, Reid was taken into custody by four Massachusetts State Police officers and read his Miranda rights – something that would happen at least two more times.
At first Reid – a British citizen – was not that cooperative. A Massachusetts State Police officer “began asking defendant various questions, and defendant responded by giving noncommittal answers,” court documents filed by Reid’s attorneys said.
“The trooper asked defendant what his name was. Defendant said that his name could be gotten from his passport. The trooper asked where defendant was from. Defendant said only that he was from Europe. The trooper asked what had happened on the plane and what defendant had tried to do. Defendant asked several times why no media were present and there was a short discussion about whether the event was a ‘big deal’ or not. At some point, defendant said: ‘You'll see, you'll see.’ Defendant then terminated the discussion by saying: ‘I have nothing else to say,’” according to court documents.
Reid was then taken to a Massachusetts State police station, where he was again informed of his rights to remain silent and obtain a lawyer, the documents filed by Reid’s lawyers said.
Three hours later, before FBI interrogators began their own interview with Reid, they again informed him of his Miranda rights.
“A long interview began,” according to court documents. After about 50 minutes, medical personnel tried to treat Reid, but FBI agents “would not stop the interview” because “defendant ‘was being so forthcoming,’” court documents said.
In that interview, “Reid stated that although born to a Catholic mother and a Protestant father, he converted to Islam during his early twenties,” according to court documents filed by the government. “He also explained his motivation for attempting to bomb Flight 63 by stating that the United States should not be involved in Muslim affairs such as supporting Israel. He stated that democratic countries are ruled contrary to God’s will. He further stated that ‘America is the problem, without America there would be no Israel.’ He explained that, in his view, America is responsible for supporting Israel and other illicit regimes throughout the Middle East. He also stated that ‘America must remove its troops from our soil and keep its nose out of our business.’ When asked why he didn’t consider peaceful methods to accomplish his goals, Reid replied that ‘people tried peaceful methods for seventy years.’”
FBI agents questioned Reid even more the next day.
“In his second interview, Reid stated that he chose to attack an airplane because he believed an airplane attack, especially during the holiday season, would cause the American public to lose confidence in airline security and stop traveling, leading to a substantial loss of revenue which would in turn hurt the American economy,” court documents said. “Reid further stated that he switched his target from Israel to America after America began bombing the Taliban in Afghanistan (in October 2001), which made him very angry.”
Reid also told interrogators that the idea of placing explosives in his shoes came from his observations of Israeli airline security while in the Middle East, including the fact that security personnel did not check the insides of his shoes, court documents said."
January 25, 2010, 4:51 pmDilan Esper says:
Prof. Cassell’s argument in Dickerson was sound.
It was so sound it didn’t even get Rehnquist’s vote.
January 25, 2010, 4:57 pm11-B.2O/B4 says:
Not a US citizen, trained by (and therefore ostensibly a member of)a non-state entity which has declared war on the US. This isn’t rocket science people. He does not have the same protection that a US citizen does. He is an enemy combatant, to be treated as such. If he WAS a US citizen, we could charge him with treason on top of it all, but we’d have to Mirandize him.
January 25, 2010, 4:58 pmbailey says:
http://www.politico.com/blogs/politicolive/0110/Gibbs_Right_decision_to_read_underwear_bomber_his_rights.html?showall
I don’t know-was Gibbs out of the loop?
January 25, 2010, 5:00 pmChris Travers says:
Quite agree. In fact, why we would even want to have such people have habeas rights at all, or even anyone accused of any crime be innocent until proven guilty is just beyond me. Indeed, we need to get rid of that pesky due process clause too. We should live in a government of men instead of a government of laws, and put our trust in the government to keep us safe from the Hurwitz’s of the world…
January 25, 2010, 5:00 pmChris Travers says:
So permanent non-citizen residents have no due process rights?
January 25, 2010, 5:02 pmSammy Finkelman says:
This has nothing to do with a confession. It was an open and shut case against him any way. It was about obtaining infomration about his co-conspirators.
The difference between this and some other cases is that this is a pretty big ongoing conspiracy based outside the United States, mostly in areas that the government that theoretically should be in charge really is not. Today we read that Pakistan refuses to go to war against the Taliban in North Waziristan anytime soon – i.e. we should be grateful for Swat and South Waziristan – and has managed to get the United States on the defensive (Another story the other day said Secretary of defense Gates was asked by someone in Pakistan – are you fr us or against us.)
That is not to say that someone associated with Mexican drug dealers really should be warned or encouraged not to talk but there is an argument this is one of the worst type of cases.
Another argument against a civilian trial is that too much evidence might have to be made public – when Osama bin Laden found he was an un-indicted co-conspirator in the world Trade Center bombing it is said he decided to leave Sudan and go to Afghanistan..
Of course Clinton didn’t want him anyway. When Sudan broached the idea of turning it over it was waved off. Clinton’s explanation in 2002 was that they didn’t have enough evidence to convict him. when Stanley Berger got a look at the National archives records and saw that he destroyed any evidence of this offer or that any rate none of it was going to to the 9/11 commission, Clinton and Berger changed their story and just denied the offer had been made at all. (The documents he stole were ones that would have undermined the myth that something he did prevented the Millennium bombing – and that lie did NOT get into the 9/11 report.)
January 25, 2010, 5:02 pmzuch says:
I think you hit the nail on the head with your first sentence. Care to think about it some more and see if you can come up with an answer to your third question?
Cheers,
January 25, 2010, 5:04 pmShelbyC says:
Chris, are you arguing that Miranda warnings were constitutionally required, even if we didn’t use his statements? A lot of people seem to be assuming that, but I don’t see anybody backing it up.
January 25, 2010, 5:05 pmsureyoubet says:
Is it really the case that either the underwear or the shoe bomber committed their crimes “on US soil.”
Does anyone know, legally, when a person on a vessel headed towards the US officially enters the US? When the plane crosses a US border (in which case Reid was definitely not on US soil, and the underwear bomber was probably still over Canada)? When they board the aircraft? When they pass through immigration?
It seems to me that neither of these guys committed their crimes or acts of war, or whatever you want to call them, on US soil.
January 25, 2010, 5:06 pmShelbyC says:
Maybe I’m just too dumb. Why don’t you help me out? Why Mirandize him?
January 25, 2010, 5:11 pmDJR says:
Shelby,
I was more thinking about the part where thankfully former Judge Cassell suggests that it is “perfectly sensible” to declare someone an “enemy combatant” to get them away from the criminal justice system to pursue such questioning as the President sees fit. That’s John Yoo’s mode of reasoning, a mode that we thankfully have recognized is unAmerican.
January 25, 2010, 5:16 pmShelbyC says:
At least if you torture him. If this guy really is a member of Al-Quaeda and covered by the AUMF, it doesn’t strike me as terribly unreasonable to hold him as an enemy combattant. That whole line’s pretty blurry anyway.
January 25, 2010, 5:22 pmShelbyC says:
IIRC Renquist and the rest kinda wussed out on Dickerson, no? The opinion said maybe the court wouldn’t have voted for Miranda, but they were respecting stare decisis and declining to overrule it?
January 25, 2010, 5:26 pmChristopher Cooke says:
I don’t get this criticism. If we treat him as a prisoner of war, I thought we would have no right to interrogate him at all. How is this better than treating him as a criminal and reading him Miranda?
January 25, 2010, 5:30 pmorca says:
I thought enemy combatants were only required to provide basic information about who they were.
Where did the laughable belief that the military can extract more useful information from a prisoner than the F.B.I. can come from?
Or is this really about the wingnut’s ongoing efforts to drag America into the sewer?
January 25, 2010, 5:34 pmleo marvin says:
But before that you said
That misleadingly implies the source of the problem is our terrorist-coddling current president. In fact, as you admit after Oren points it out, he’s treating the underwear bomber the same way Bush treated the shoe bomber.
January 25, 2010, 5:41 pmCMH says:
U.S. v. Reid, 211 F.Supp.2d 366 (D.Mass., 2002) (emphasis added):
“On December 22, 2001, the police took Reid into police custody…after the flight on which he allegedly attempted to detonate an explosive device – American Airlines Flight 63 from Paris to Miami – was diverted to and landed at Logan Airport in Boston. Four Massachusetts State Police officers boarded the plane, handcuffed Reid, and removed him from the plane. At around 1:00 p.m., one of the officers (it is unclear who) read Reid Miranda warnings.“
January 25, 2010, 5:42 pmSammy Finkelman says:
Correction: Former President Clinton did not say (at some kind of a cocktail partyy, recorded, and played on the Rush Limbaugh show as well as mentioned in a footnote in the 9/11 report) was taht Osama bin laden had not been indicted so they couldn’t accept him from the Sudan, not taht they didn’t have enough evidence to convict him.
January 25, 2010, 5:44 pmRandy says:
Cassedy: “… instead, we need to interrogate him with whatever means are at our disposal to get whatever information we can out of him.”
In other words, just torture him until he talks. Why use the euphemism?
Of course, advocates of torture used to say that we should only use it when there is a ticking bomb and torture will save dozens, maybe thousands, of lives. Now we are at the point where they advocate torture for no other reason than to get more information out him. And how do we know he has more information? We don’t. But that’ doesn’t matter — just keep torturing! At some point, he will talk. And even if it’s all made up stuff, you know, to stop the pain, it doesn’t really matter, because actually getting reliable information isn’t the point of torture. The point of torture it to torture, nothing more.
The Nazis gave up torture as a policy in the 1930s not because they were nice guys, but because they saw that the information was unreliable. But here come Prof. Cassedy just sure that if you hurt the guy, he’ll spill his guts out.
Life isn’t a tv show. I wish some people would remember that.
January 25, 2010, 5:45 pmShelbyC says:
It came from the news reports that the guy was talking until he was Mirandized. But why does it matter why you hold him? Nothing wrong with interrogating the crap out of him without Mirandizing him, you just can’t use his statements.
As far as enemy combatants only being required to provide basic information, AFAIK that’s certainly true for POW’s, but this guy certainly isn’t a POW. But you’re you’re allowed to ask for more information than just name, rank, and serial #.
January 25, 2010, 5:49 pmChristopher Cooke says:
Okay, I looked up protections afforded a prisoner under the laws of war. Here is a helpful article on the subject by the Congressional Research Service: link .
It seems that under the Geneva convention, you can lawfully interrogate a prisoner, just not subject him to physical or psychological coercion.
So, I guess the debate here is whether the government should have elected to continue to interrogate the Captain underpants bomber, as a military POW, or treated him as a criminal suspect. Note, that Miranda and the 5th Amendment jurisprudence do not prevent his continued interrogation. The exclusionary rules means that we don’t get to use the information to prosecute him. So, it seems they could have asked him all the questions they wanted without Mirandizing him, and the worst that would happen is that the information wouldn’t be admissible at his criminal trial. I guess I would have continued to interrogate him if he was continuing to give helpful information because they already had more than enough evidence to convict him from the moment he was taken off the plane.
This indicates to me that DOJ needs to revise its policies for this contingency, so it doesn’t repeat this type of mistake (if that is what it was).
January 25, 2010, 5:51 pmShelbyC says:
@CMH, fine, ya got me :-). But I still don’t think you can justify the attack on Cassel unless you show the warnings interfered with the investigation.
January 25, 2010, 5:51 pmgeokster says:
Too bad you weren’t willing to take such action before 2008 with Eric Holder.
January 25, 2010, 5:54 pmAnon says:
As Franklin, Hayek among many others have warned, destroying the rule of law because you are currently scared or some other rationalization that “this time is different” is not a rules structute that will end well.
I disagree the Miranda rule is a bad rule or that doing a way with small courtesies makes anyone safe. The miranda rules allow suspects to avoid over zealous prosecution. Its an easy rule to follow and it prevents abuse.
I’d also concur that its better to have some gulty go free by following the rules then to lock up the innocent–or to cheat the guilty by denying the rules apply to them. Even with Miranda, there are many stories of people falsely confessing to crimes under police pressure. To fail to understand that is a problem is to lose sight of who needs to be protected by the rules. Typically, the weak. In this case, the weak and ignorant.
Limiting police rights have worked fairly well in the US, as shown by the millions who have come and are begging to come to the US. One of the reasons they come here is for protection of the laws (and the right to stipidly say they want legal protections done away with for everyone else)
And if you are going to have rules granted from the Constitution under the implied powers, Miranda is only logical because it requires people be informed, protecting the ignorant.
At this point in time, Miranda rights are a defacto a rule of Congress because, while Miranda has generated a lot of controversy, Congress has not overruled it. The only ones doing that are the RW jurists who are doing so on the sly because they disagree with the rule. At this point, its that behavior which is dishonest. Had Congress wanted to change Miranda, then it would have done so. Chipping away the rules is the worst way to overrule them. It allows for cheating.
In a point which contrasts with the Miranda disapologist view, IMO in the long run, the rules do matter. People are willing to play when the rules are fair and are fairly applied. And to be fair, they need to apply to everyone, all the time, so much as we are able. Would you be willing to play a game where you did NOT know the rules? Do you think it fair someone is required to tell you the rules?
I’d suggest that according to all reports Abdulmutallab was a sad sack. Treat him with some respect and friendship and folks like that usually tell everything. And he’ll do that more quickly if he knows he was caught red handed and still treated in a legal manner under our laws.
If want this country to lose respect as it has, pray continue with sending troops to other countries, lecturing them on the rule of law, and then claiming you are “different” so you do not need to follow the law yourself because its an “emergency.” That is called being a hypocrite, perhaps, or some curse word would be correctly applied to that behavior.
Last, cowardice will not be cured by removing civilized rule structures. People argue they do not feel “safe” unless limits and laws are removed. Let me suggest that the torture advocates and the “we do not feel safe with Obama” crowd like Dick Cheney and others like him are basically cowards. In WWII they were termed Garritroopers. Lately, people who actually did fight in Vietnam among other places named them the Chickenhawks. On the one hand, we have people like Cheney, Bush, Limbaugh, and many Republicans who avoided military service in Vietnam (Limbaugh successfully claimed he had an infected boil on his ass) talking all tough. And people who actually did fight do not feel the need to bragg and support the anti-torture rules.
Let suggest the chickenhawks will be cowards whatever rules we have in place.
No matter where the line is drawn, eliminating Miranda or torture rules will just create a call among those folk for more aggressive behaviors–no matter what was done they just claim its not enough.
Not a good reason to do away with the rules. Countries with a strong rule of law are invariably wealthier and better places to live than those without. So why weaken the rule structure? To get information from one mentally maladjusted loner? Please.
January 25, 2010, 5:54 pmzuch says:
To easy for a hint. Your full two (substantive) questions:
Do you think the purpose of Miranda is to “produce[] a usable confession”? Scroll (or click) up.
Cheers,
January 25, 2010, 5:55 pmorca says:
If he’s arrested under the powers granted to the Prez under the AUMF, how can he not be a prisoner of war?
January 25, 2010, 5:56 pmbailey says:
So, once again, the Kossites dominating the thread are arguing that someone who doesn’t follow the rules of war, such as they are, wears no uniform or insignia and purposely attempts to kill civilians should be treated in the same manner as someone who does follow the rules (actually, better, as they wouldn’t get all of the rights we seem to be affording this underprivileged lad under the Constitution). Makes a lot of sense. That Cassell guy sure is stupid.
January 25, 2010, 5:58 pmDilan Esper says:
IIRC Renquist and the rest kinda wussed out on Dickerson, no? The opinion said maybe the court wouldn’t have voted for Miranda, but they were respecting stare decisis and declining to overrule it?
Quite true. But the supposed need to overrule Miranda (complete with the same sort of parade of horribles scenarios as you see in this post, with criminals going free and interrogations obstructed by Miranda invocations) was a huge part of Professor Cassell’s argument. The fact that he couldn’t convince William Rehnquist, let alone 6 other members of the Court, pretty much tells you all you need to know about the strength of this argument.
January 25, 2010, 5:59 pmzuch says:
Just to clarify, it was I that wrote that sentence. With tongue firmly in cheek.
Cheers,
January 25, 2010, 6:01 pmShelbyC says:
I’m not an expert — you’re the guy claiming he can’t be interrogated — (I think he can even if he’s a POW) but AFAIK only folks meeting certain criteria are entitled to POW status and protections (wearing a uniform, not posing as a civilian, etc). Folks enganging in warefare outside of those criteria are entitled to a lower level of protection.
January 25, 2010, 6:02 pmDilan Esper says:
So, once again, the Kossites dominating the thread are arguing that someone who doesn’t follow the rules of war, such as they are, wears no uniform or insignia and purposely attempts to kill civilians should be treated in the same manner as someone who does follow the rules (actually, better, as they wouldn’t get all of the rights we seem to be affording this underprivileged lad under the Constitution). Makes a lot of sense. That Cassell guy sure is stupid.
You know, I’d never argue that the visible insignia requirements aren’t important (they make it easier to distinguish combatant and civilian), but I’m pretty amazed at how conservatives think that it is some slam dunk argument that a person has no rights and can be summarily executed or abused in custody or disappeared simply because the person went into a combat zone and didn’t wear an insignia.
Is this the standard that you guys think American special forces and special ops guys, American contractors, CIA operatives, etc., should be treated by the rest of the world? If someone catches an army ranger disguised to blend into the civilian population, that person can and should be shot as an unlawful enemy combatant?
Seriously, violating the insignia requirement does not lead to the loss of all rights. It might make someone into an unlawful combatant who can be prosecuted for war crimes (if the person has committed them), but it’s not a free pass to the captor.
January 25, 2010, 6:04 pmDave N. says:
I agree with those who are actually discussing the implications of non-Mirandized statements.
I made the rather snarky comment earlier because ONLY the person responsible for interrogation in ANY case should be deciding when to give Miranda warnings.
In the Richard Reid case, it appears the Massachusetts State Police Mirandized him. That decision was idiotic, since the MSP had a pretty good idea Reid would be turned over to the feds in very short order. So why did that unnamed state officer do it? Probably because he’d seen it on TV and thought he had to do so.
January 25, 2010, 6:17 pmShelbyC says:
Yes, I think the purpose of Miranda warnings are to ensure that any statements are voluntary under the 5th amendment (as interpreted in Miranda and other decisions) so that they can be used at trial. You pointed to your post about “following the law”. What do you think the law requires?
January 25, 2010, 6:19 pmzuch says:
FWIW, Dilan Esper basically had it right in the very first post.
Prof. Cassell’s post should have been very short: “Miranda was wrongly decided, and is not good law. Therefore we should have interrogated him and got what we needed.”
He could have continued:
“Antonin Scalia is also right that the 8th Amendment only prohibits ‘cruel and unusual punishment[]‘ as punishment (i.e., post-conviction) and thus does not apply to interrogations at all. Therefore, not only can we interrogate people we think are bad guys, but we can interrogate the crap outta them. Batons, rubber hoses, waterboarding, all without Constitutional impediment. Not only that, but because our ratification of the CAT was done with an understanding that it would cover only acts prohibited by the 8th Amendment, and our Torture Statute (18 USC § 2340 et seq.) implements this act, it’s all legal!!! Get out the cat’o'nine tails and the electrodes; there’s work to be done!”
This will, of course, come in handy: When a gangbanger from some project gets caught gunning down someone, tackled, smoking gun in hand, powder residue on his hands, in front of ten witnesses, we can still give him the sorely missed “third degree” and get all the juice on his other buds and the nefarious deeds they’ve done or are planning. This will do much to pacif… — umm, “bring law and order” — to our streets.
Cheers,
January 25, 2010, 6:20 pmzuch says:
How do they do that? For that matter, how can they do that? The plain purpose of Miranda warnings is to let the suspect know their rights. You know, the plain text of the warnings kind of lets the cat out of the bag. You do believe in “plain text” interpretation, don’t you?
Cheers,
January 25, 2010, 6:33 pmShelbyC says:
Zuch, let’s assume Miranda and its progeny were correctly decided (I think they wern’t). It sounds like you are suggesting that Miranda required this suspect to be Mirandized. How so?
January 25, 2010, 6:34 pmChris Travers says:
Actually, my point was that holding someone for an extended time raises due process issues. You know, habeas and all that.
Mr Cassel’s point seemed to be “why mirandize him and go to trial when we could hold him indefinitely for questioning?”
January 25, 2010, 6:39 pmSG says:
Does anyone thing that obligatory Miranda warnings and legal counsel were what Congress intended for Al Qaeda members when it passed the AUMF by a combined margin of margin 518-1 in 2001? Was Congress acting within its authority? Has something in the intervening years occurred that would have rendered the AUMF inoperative?
January 25, 2010, 6:39 pmzuch says:
No. But if you don’t Mirandize him, you need to build a Chinese Wall to keep any possibility of taint out of not only any subsequent evidence gathering (“fruit of the poisonous tree” and all that) but also out of the trial (see, e.g., the North conviction).
That being said, you should MIrandize him anyway … as I hinted above, Miranda protections are not exactly a state secret, so you don’t really lose all that much if anything….
Cheers,
January 25, 2010, 6:43 pmChris Travers says:
Or rather wouldn’t he be a POW until a competent tribunal determines otherwise?
January 25, 2010, 6:43 pmzuch says:
Doesn’t matter, does it? That’s from existing law.
Cheers,
January 25, 2010, 6:48 pmShelbyC says:
Which we already have if we let the military or CIA interrogate him and the DOJ procecute him. That was you point all along? Why didn’t you just say so? But the desire to avoid such a wall hardly seems to justify the tone of the critisism of Prof Cassell in many of the comments I was addressing.
January 25, 2010, 6:54 pmSebastian the Ibis says:
There are dozens if not hundreds of witnesses to the underwear bomber trying to blow up a plane and what should be more than enough physical evidence(burns, explosive residue etc.)
Why does a tainted confession matter here? He can still be convicted without it. Couldn’t Mr. Underpants be quickly convicted in civilian court, then transferred to a military base for questioning? Or aggressively questioned, then convicted without using his confession?
This isn’t some shlub who got picked up with little or no evidence, and the government needs a confession to convict.
January 25, 2010, 7:00 pmzuch says:
And this worked how well in the North case? Not saying it’s not possible (you now, trying a terrorist is easier than trying a Republican hero), but….
Cheers,
January 25, 2010, 7:06 pmNunzio says:
Zuch,
North’s conviction, like Poindexter’s, was over-turned because his immunized testimony in front of Congress was used to secure his conviction. So it was a Kastigar problem.
You are an ideologue, they same as those you rail against.
January 25, 2010, 7:14 pmJK says:
The “enemy combatant” business made a certain amount of sense when we were talking about ununiformed and stateless militia groups we were fighting in Afghanistan, but it would seem to just prove the left’s criticism of the term and related process to apply it to a Nigerian citizen who committed a crime in the US simply because that crime could be categorized under an ill-defined notion of “terrorism.”
I certainly don’t revel in the idea of this guy getting anything but the harshest treatment, just like I dislike the idea of any hardened and heinous criminal getting any sort of lenancy, but panicking and throwing out our system of criminal procedure hardly seems like a wise course of action.
Our criminal justice system has dealt with the mafia, serial killers, and the KKK, it can deal with this group of lowlifes also.
January 25, 2010, 7:15 pmShelbyC says:
Maybe ya don’t put the interrogation on national TV?
January 25, 2010, 7:20 pmPaul Cassell says:
I have to say that I am surprised by some of the comments to my post. My argument was straight-forward:
1. There was no obligation to give Miranda warnings to the bomber.
2. Miranda warnings had the potential to reduce the amount of useful information that bomber gave to government investigators by encouraging him to clam up (as they seemingly did).
3. It was desirable to get as much information as possible from the bomber (i.e., about potential future targets and co-conspirators).
4. Therefore, it was a mistake to give him Miranda warnings.
Perhaps some of the commentators could explain where they see a difficulty with my argument. I think some of the commentors are challenging my first point. But current Supreme Court decisions make that point indisputable, as Miranda warnings are only a prerequisite to using a confession in court — not to asking questions by the government.
January 25, 2010, 7:21 pmNunzio says:
JK,
The issue seems to boil down to whether Al-Qaeda should be dealt with by the criminal justice system, like La Cosa Nostra, or if they are a national security threat and should be dealt with militarily.
Both the Bush and Obama administrations have taken the dual approach, which is why we are still doing drone strikes in Afghanistan (I don’t recall that the U.S. government ever hit Sicily in the 1940s or 1950s to take out the mafia) though the Bush administration pushed a lot further by designating U.S. citizens, even those taken in custody in the U.S. as enemy combatants.
The Obama administration hasn’t ruled this part out, but time will tell.
January 25, 2010, 7:25 pmDaniel Chapman says:
ShelbyC: Considering both ruufles and oren hit the same talking point within minutes of each other, I’m guessing it’s a talking point on some other blog.
I’m also curious to see if it’s accurate or not. Link please?
January 25, 2010, 7:27 pmDilan Esper says:
Perhaps some of the commentators could explain where they see a difficulty with my argument. I think some of the commentors are challenging my first point. But current Supreme Court decisions make that point indisputable, as Miranda warnings are only a prerequisite to using a confession in court — not to asking questions by the government.
Actually, (1) is somewhat in question, in that while some of the Miranda caselaw focuses soley on the inadmissiblity of statements taken outside Miranda, other cases state flatly that the interrogation “must cease” if Miranda rights are invoked. Further, in as much as Miranda is a phrophylaxis for determining voluntariness under the Fifth Amendment, interrogating outside Miranda could certainly be argued to at least sometimes violate the Fifth Amendment. (See, e.g., Cooper v. Dupnik.) But, of course, you know all this stuff, Professor Cassell, because of your former life as a legal scholar crusading against Miranda.
But I will certainly assume (1) for the sake of argument, because it’s a defensible reading of the cases (just not the only one).
The rest of your argument is highly problematic. It proves way too much. ANY interrogation of ANY criminal suspect could be impeded by invocation of Miranda rights. There’s nothing special about a terror prosecution. The mafia is a huge, international criminal conspiracy too. So are many prison gangs. So are many drug trafficking rings.
Yeah, we know, you get less information, sometimes, when you apply Miranda. Our criminal justice system seems to think this is an acceptable cost and has basically laughed your arguments to the contrary (arguing we had to overturn Miranda because lots of guilty people were going free) out of court. It’s not any better an argument when made about a terror suspect than it is when it is made about a drug kingpin or a Mafia operative.
What you need to do is articulate what’s so special about failed terror plots that Miranda needs to be ignored even while it remains the law of the land as to other crimes. And there isn’t a good policy argument for that– because at bottom, your position is motivated by your longstanding hostility to Miranda in toto.
January 25, 2010, 7:34 pmJK says:
January 25, 2010, 7:45 pmShelbyC says:
Who says there’s anything special about terror plots? Assuming point 1, which is pretty easy to do given Martinez, wouldn’t you always want to avoid giving warnings when you think they will lead to reduced cooperation, and you don’t want to use the statements at trial? It seems to me that what’s special here is the level of valuable inteligence the suspect had to offer.
And it seems to me that the fact that arguments that a decision based on a blatant falsehood, that confessions without the warnings are inherantly involuntary, are laughed out of court (well, they wern’t laughed out of the 4th circuit) says more about the court than about the arguments.
January 25, 2010, 7:49 pmRPT says:
What is a “Kossite”? A headphone fan?
January 25, 2010, 7:51 pmDilan Esper says:
Who says there’s anything special about terror plots? Assuming point 1, which is pretty easy to do given Martinez, wouldn’t you always want to avoid giving warnings when you think they will lead to reduced cooperation, and you don’t want to use the statements at trial?
As I note, there is language in other cases saying the “interrogation must cease”, and there are cases such as Cooper holding that even if a Miranda violation by itself isn’t a Fifth Amendment violation, it can evidence one.
Further, for good reason, it isn’t standard law enforcement practice to interrogate outside Miranda. Even if the evidence sanction is the only sanction imposed, that is pretty severe, in that confessions are pretty powerful evidence in criminal prosecutions and you don’t want to forego your ability to obtain one.
One of the reasons why Professor Cassell took such a brutal loss in Dickerson is because his empirical claims about how Miranda was letting all sorts of criminals stay loose were extremely thin. In fact, many police departments scrupulously follow Miranda and successfully break up criminal conspiracies all the time.
(By the way, if you think the premises behind Miranda were false, you need to read up a bit on 1950′s / 1960′s police interrogation practices. They were not pretty and railroaded a lot of criminal suspects.)
January 25, 2010, 7:58 pmJK says:
Right, and my point was that while I think there’s room for healthy debate regarding how we deal with the overseas aspects of the “war on Terror” (Criminal vs. Military/national security), I’m utterly unconvinced that the there is any sound reason to deal with the domestic aspects outside of a criminal justice framework. Those calls seem entirely based on a craven panic that our criminal justice system is too soft to deal with that in absence of any evidence that’s the case.
If we actually start to approach a Civil War level of domestic chaos, where our institutions can demonstrably not keep up with what’s going on, then we can deal with that contingency when it arises. Until then, I have no interest undermining the rule of law based on fairy tales of comic book super-villains bent on our destruction with their magical terrorist powers.
January 25, 2010, 7:58 pmNunzio says:
Dilan,
If there’s nothing special about terror prosecution, then why is the government asking to spend so much for security to try KSM and his cohorts?
Most people think 9/11 is different than the hit on Paul Castellano.
And the crusading professor’s view of point (1) is correct. And it is not in question. I doubt you could get 2 votes on the Court to agree with you, which of course the Supreme Court’s word is always correct.
January 25, 2010, 8:00 pmJK says:
I’m no expert in this area, but doesn’t this mean that not Mirandizing said jackass could undermine a criminal case against him? It’s probably not necessary given the overwhelming evidence, but that’s true in all sorts of cases where we choose to read suspects Miranda rights since there’s no reason to imperatively throw out evidence given by the suspect.
It’s certainly possible, but it doesn’t strike me as very likely. My gut is that the chance that reading Miranda rights to this guy influenced his behavior one bit is less than 1%. The idea that this guy had what it took to spend years preparing and steeling himself for blowing up an airplane he was and then attempting to do it, but he needed encouragement from some fed to sit quietly in a room and not respond to interrogation sounds like a serious long shot.
Sure, why not get “as much as possible,” but again, what is the real chance that this guy knew much of anything of value. I guess it’s a better chance than the idea that he needed to be read Miranda rights to get the brilliant flash of insight to sit quietly in a room, but it still seems unlikely he knew anything of value that we don’t already know (do I really need to explain why?).
At best you’ve demonstrated that there is some, though in my mind de minimis, negatives to doing so, but that only ends the discussion if there are no positives at all. Is that really true?
January 25, 2010, 8:01 pmNunzio says:
JK,
I would have agreed with you until 9/11. Although Al-Qaeda is not some omnipotent force of super-villains (and seem pretty incompetent most of the time), they have proven in New York, Madrid, and London to be capable enough.
I admire your view, however, and am pretty sympathetic to it.
January 25, 2010, 8:02 pmleo marvin says:
I doubt Congress anticipated processing a guy who fails to ignite the bomb in his underpants.
January 25, 2010, 8:03 pmBob from Ohio says:
Are you really this naive? Our enemies kill our soldiers captured in uniform. Same with Israeli soldiers.
They don’t honor any rule or law of war. They don’t need any excuse or justification to act like barbarians, its their entire MO.
Anyways, you are on record that several hundred lives don’t matter, so what do you care about a ranger? We got 300 million more.
January 25, 2010, 8:04 pmDilan Esper says:
If there’s nothing special about terror prosecution, then why is the government asking to spend so much for security to try KSM and his cohorts? Most people think 9/11 is different than the hit on Paul Castellano.
The funny thing is, the Mafia is far more effective at disrupting the justice system than Al Qaeda could ever hope to be. But security spending tracks public fears, not rational evaluations of security risks.
And the crusading professor’s view of point (1) is correct. And it is not in question. I doubt you could get 2 votes on the Court to agree with you, which of course the Supreme Court’s word is always correct.
Nunzio, the cases I quoted saying “the interrogation must cease” got 5+ votes AND were reaffirmed by Rehnquist in Dickerson. The Court has made feints in both directions on this.
January 25, 2010, 8:04 pmNunzio says:
Dilan,
And when interrogation does not cease, all it means is you can’t introduce it into evidence at trial (except to impeach the defendant if he takes the stand).
It doesn’t mean you toss the conviction. If the reports are true, they don’t need his confession. They have at least 12 witnesses and the ATF explosives expert.
What they government might need is some intelligence.
January 25, 2010, 8:20 pmMike says:
Can you be serious?? You don’t see a fundamental difference between people who blow up airliners, or fly them into skyscrapers — and who do so as an explicit act of war against American civilians — and “Mafia informants?” This is the most moronic argument I’ve seen in these comments. We wouldn’t give real soldiers captured on a battlefield Miranda rights — yet you and our President want to bestow them on mass-murdering jihadists. Unbelievable.
January 25, 2010, 8:24 pmShelbyC says:
I’m sure they were, and I think the warnings should be required by statute. And I’m sure the vast majority of such interrogations yielded involuntary confessions. It’s the fact that the presumption of involuntaryness is irrebuttable that bothers me. So even if no coersion is used, and the defendant gets up in court and says, “yup, it was voluntary. I knew damn well I could remain silent, but I blabbed anyway” the courts will still force the states to exclude the evidence on the basis that it is involuntary.
January 25, 2010, 8:26 pmzuch says:
It’s a similar issue. I didn’t say it was the same. His testimony before Congress wasn’t used as evidence. They tried to do the “Chinese Wall” thing, and bottled up all the evidence before his testimony. But the courts ruled that the immunized (read “inadmissible” or “poisoned” if it helps you understand the parallels) testimony leaked in anyway (or that the prosecution couldn’t show that it hadn’t). This is why I brought it up: You can grab your interrogation, and then get another team to do the evidence gathering for prosecution. But you may end up with a sceptical court even then. It’s not easy. Mirandizing the guy beforehand avoids this particular problem.
Cheers,
January 25, 2010, 8:54 pmAnonsters says:
Run and hide! Skeery, skeery terrorists.
Leo Marvin wins the thread.
January 25, 2010, 8:57 pmzuch says:
Because we don’t try them (as a rule). It’s right there in GC3.
Because they seem to have committed criminal acts. That’s the way it works. We Mirandize criminal suspects. Not people we meet on the street. Albeit I should warn you you have a right to remain silent, and anything you say may — and probably will — be used against you.
Cheers,
January 25, 2010, 9:00 pmDilan Esper says:
Can you be serious?? You don’t see a fundamental difference between people who blow up airliners, or fly them into skyscrapers — and who do so as an explicit act of war against American civilians — and “Mafia informants?”
Do I see “a difference”? Sure. But you are vastly overstating the post-9/11 threat of Al Qaeda, and vastly understating the power of the Mob.
We wouldn’t give real soldiers captured on a battlefield Miranda rights — yet you and our President want to bestow them on mass-murdering jihadists.
You act like Miranda is some sort of gift to criminal suspects, rather than a means to ensure reliable convictions.
January 25, 2010, 9:02 pmArthurKirkland says:
Was Luis Posada Carriles informed of his Miranda rights?
Did Prof. Cassell object?
Was the shoebomber, Reid, informed of his Miranda rights?
Did Prof. Cassell object?
The rest writes itself . . .
January 25, 2010, 9:03 pmPerseus says:
Rehnquist would never have signed on to Miranda in the first place (and I thought the standard leftist line was that Rehnquist did his best to hollow out as much as outright overturn Warren Court decisions).
January 25, 2010, 9:10 pmRicardo says:
A U.S.-flagged aircraft (which any Northwest Airlines plane is) is considered U.S. territory pretty much from the moment it takes off unless there is some treaty with a particular country relinquishing U.S. jurisdiction. Moreover, U.S. airspace is also U.S. territory. I don’t know whether Abdulmutallab was over Canada when he tried to ignite the bomb but he was certainly taken into custody in U.S. territory.
January 25, 2010, 9:16 pmAnonsters says:
Don’t worry. We Leftists do solemnly affirm that Rehnquist is still The Devil.
But even the devil does something right every once and a while.
January 25, 2010, 9:23 pmRicardo says:
I doubt it. And indeed, the FBI extensively interrogated Abdulmutallab without Mirandizing him first according to the sworn testimony of Robert Mueller. I’d agree with some commenters here that the FBI may well have never needed to Mirandize him at all since they do not need any confession of his to have an air-tight case. But given that the most critical period for obtaining intelligence may be within the first 24 hours of apprehending a suspect, the FBI appears to have done its job well.
Richard Reid, according to court documents, was Mirandized several different times during his interrogation.
January 25, 2010, 10:41 pmElliot says:
So what? I suppose a string of bombers could kill 1,000 people per day and one could still make that observation.
January 25, 2010, 11:17 pmjuris imprudent says:
zuch: We Mirandize criminal suspects.
Which of course points to the question – is criminal justice the correct approach to dealing with terrorism? Perhaps if it follows the parallel of how piracy was dealt with a couple of centuries earlier. I don’t think the Bush Administration had the right approach, but I’m also not convinced that we’ve got it right now either.
ricardo: A U.S.-flagged aircraft (which any Northwest Airlines plane is) is considered U.S. territory
Pan Am 103?
January 25, 2010, 11:19 pmMark Field says:
JK, excellent posts.
January 25, 2010, 11:27 pmRicardo says:
Jurisdiction is not exclusive and depends on each concerned country’s own national law. I believe the U.S. also had jurisdiction unless it signed its jurisdictional claims away in a treaty with the U.K.
January 25, 2010, 11:41 pmzuch says:
And your alternative — ummm, what is your alternative?!?!? — will remedy this how? And at what price?
No matter. You don’t like the law? Change it, don’t break it.
Cheers,
January 26, 2010, 1:53 amzuch says:
Is the criminal justice system the correct approach to dealing with criminals?
Care to elucidate on the “terrorism” exception in the Constitution or BoR?
Cheers,
January 26, 2010, 1:56 amzuch says:
IIRC, I believe they were tried in the Netherlands under Scottish law (there were people killed on the ground in Scotland as well).
Cheers,
January 26, 2010, 1:59 amThe easy answer says:
Even with Miranda, there are many stories of people falsely confessing to crimes under police pressure.
But we don’t want terrorists to confess to a crime. We want to prevent more attacks. The police aren’t involved in this war the terrorists wage against us.
Abdulmutallab was a sad sack. Treat him with some respect and friendship and folks like that usually tell everything.
But treat him as we did, as a criminal, and he stops talking at all.
If want this country to lose respect as it has, pray continue with sending troops to other countries, lecturing them on the rule of law, and then claiming you are “different” so you do not need to follow the law yourself because its an “emergency.”
You haven’t done this last part at this point. You haven’t claimed yet that you’re “different.” But continue to say, sometimes, that terrorists are criminals, and sometimes say instead that they’re not. You could justify it with a quote from Walt Whitman, I guess.
Last, cowardice will not be cured by removing civilized rule structures. People argue they do not feel “safe” unless limits and laws are removed.
Other people don’t argue this, but we pretend that they do, to smear them, and win easy points. These people actually argue, correctly, that there is no obligation to pretend terrorists are criminals. There are good PR reasons to pretend that terrorists are criminals, if image is more important than reality is, but there are excellent reasons to admit, instead, that the terrorists are waging a war, and we want them to talk to us.
January 26, 2010, 3:09 amTweets that mention The Volokh Conspiracy » Blog Archive » Mirandizing the Christmas Day Bomber — Why? -- Topsy.com says:
[...] This post was mentioned on Twitter by Bob Connors, Ave Sharia, Hassan Abdullh, Eugene Volokh, fred johanessy and others. fred johanessy said: The Volokh Conspiracy » Blog Archive » Mirandizing the Christmas …: Over at Crime and Consequences, former… http://tinyurl.com/yjh7nr3 [...]
January 26, 2010, 6:45 ammattski says:
I can’t think of a better word to describe the vibe at this blog than “panic.”
January 26, 2010, 6:59 amShelbyC says:
Who’s suggesting we do anything contrary to the constitution or BoR?
January 26, 2010, 8:35 amPerson of Choler says:
How it should have been done: 7 December 1941. J. Edgar Hoover puts out an all points bulletin for the arrest of a certain Admiral Isoruku Yamamoto. Wanted posters of the Japanese Navy and Air Force are put up in every US post office. Emperor Hirohito is declared “Public Enemy Number One”. Law enforcement officers are put on the lookout for a German man with a small mustache, a possible accessory after the fact.
January 26, 2010, 8:54 amMichael Smith says:
Dilan Espar wrote:
The issue here is not mere “failed terror plots” versus other criminal conspiracies, such as hypothetical Mafia plots. The issue here is that the combat wing of Islam — as represented by Al Qaeda and similar groups who enjoy at least the tacit support of many sympathetic governments in Muslim countries — has declared war on the U.S. with the stated goal of toppling our government and erecting a totalitarian Islamic theocracy in its place. Sure, it’s an insane goal, but one they are nonetheless pursuing relentlessly, even if patiently.
In view of that, the real issue is what justifies the decision to treat — as a matter of principle – attackers like Abdulmutallab and Reid as simple criminal defendents, to be Mirandized and given a lawyer? These attackers are clearly enemy combatants — a fact not fundamentally altered by the fact they choose to wear civilian clothing.
So the burden of proof in this case rests with those of you advocating that these combatants not be treated as such, but instead treated as if they were defendents protesting their innocence after being charged with a crime in the criminal justice system. So far, in these comments I’ve not read any convincing arguments that such treatment should be the norm for captured Islamic terrorists.
January 26, 2010, 9:08 amTo Hayek With You says:
Either we are at war and these guys are illegal enemy combatants or they are not. While it is interesting in a sick sort of way to listen to a bunch of lawyers argue about how fluffy their pillows should be it is missing the point entirely. If you are a foreign national waging war against the US and you are doing it out of uniform you have no rights of any sort. This has always been the case and it can’t be any other way. Ask a WWII vet what they did with enemies found dressed as civilians who tried to blow things up behind the lines. They got exactly as much due process as the people capturing them felt like giving them.
These guys aren’t exactly shy about telling you they are at war (or its retarded 7th century equivalent, jihad) and determinations shouldn’t be hard to make early on as to whether to treat them as criminals or combatants. In this case we screwed the pooch and stuck an admitted combatant into the civilian court system. We don’t even have the excuse that this is a new type of warfare and we are trying feel our way along like Bush had to do.
Reading Miranda rights doesn’t even rise to the level of a side issue since the more fundamental error was one of classification. The guy was a combatant, not a criminal. There is no benefit to pretending otherwise.
January 26, 2010, 9:55 amKevin R.C. O'Brien says:
What all these bright and opinionated lawyers are missing is that there are prisoners, and then there are prisoners. There are at least three categories of people recognized in law, who might come into the hands of law enforcement or internal-security forces:
1. suspects under law
2. prisoners of war under Article 3
3. unlawful combatants under Article 3, sometimes called francs tireurs under earlier rule of law.
People in Category 1 are a matter of law and of constitutional rights, Miranda and what have you. People under the other categories are not normally mirandized. Your interaction with lawful combatants, POWs, is circumscribed by the internationally ratified laws of land warfare, subject to certain US demurrals. The US did not mirandize or try lawful combatants who fell into our hands, whether in the War or 1812, WWII, Korea or Iraq (there have been trials and even executions of POWs for misconduct while POWs. A familiar case is Nazi POWs who were executed for murdering suspected prison snitches at Leavenworth. But no one has ever been tried for, for example, blowing up our tanks while in the Afrika Korps or shooting down our planes while a uniformed soldier — that’s just the nature of the business).
People in Category 3 have traditionally been (entirely lawfully) shot or hung out of hand, or after a summary court in the field, or (if held longer and in a more structured environment), after trial by a military commission. This is the entirely lawful process by which Washington had André shot, Roosevelt had the New Jersey Nazis hung, and Eisenhower and Bradley disposed of Skorzeny’s US-uniformed infiltrators at the Battle of the Bulge, and of would-be Werwolf guerillas after Allied forces began to occupy German territory. The wall or the gallows has been the destination of spies and saboteurs.
It’s clear from some of the comments that one can be quite well-informed about constitutional law, and entirely in the dark on the law of warfare. The nations of the world contracted the various Hague and Geneva accords over a period of more than a century, to try to make the provinces of war a more humane place. They were not articles of surrender to those who deliberately operate outside the shelter of those accords.
As I read Professor Cassell’s argument, his point is that Abdulmutallab (and presumably Reid before him, for you tu quoque fallacists), were better handled as Category 3 prisoners than the Category 1 status that they were granted.
In my opinion (IANAL but I seem to be better informed on laws of warfare than most of the Ls out there), this is a moot point now. Once the call has been made and Abdulmutallab’s been called a defendant (my Category 1), it’s hard to unring the bell and move him back to Category 3. It’s certainly an arguable point, and actual legal scholars of this arcane corner of law are of different minds on it (which should alarm no one who knows any legal scholars). Nonetheless, this is exactly what Holder says he is going to do if, as seems likely, his department can’t convict KSM in New York.
January 26, 2010, 10:22 amBohemond says:
Khalid Sheikh Mohammed informed his captors that he “knew his rights” and wanted a lawyer. He was well-trained in resisting interrogation and firmly kept it zipped- until the CIA gave him a dose of those awful, horrible enhanced techniques.
Suddenly KSM was singing like a canary, including info that was essential to uncovering the 2006 Airliner Plot and saving the lives of 1500-2000 passengers.
So: on one side of the scales we have the lives of myriad innocents, and on the other the “human rights” of a subhuman.
Not a hard call.
January 26, 2010, 10:31 amken in sc says:
While on active duty for 24 years, I received a Geneva Convention briefing at least twice a year. One of the subjects covered was the importance of being in uniform in a war zone. Persons not in uniform captured in a war zone are entitled to a summary tribunal. The purpose of the tribunal is to determine that they were truly not in uniform and nonetheless involved in hostilities. After that determination, they may be executed or otherwise punished according to military rules. For this reason, all civilians associated with the military, such as the USO and the Red Cross have special uniforms and Geneva Convention ID cards when in a war zone. This is supposed to grant them POW status if captured.
January 26, 2010, 10:32 amMark Field says:
I think he misspelled it. I’m sure he meant to refer to the group which took over Babylon at the fall of Hammurabi’s dynasty.
January 26, 2010, 11:55 amzuch says:
Yes. See my prior comment.
Cheers,
January 26, 2010, 12:16 pmzuch says:
Here’s Cassell’s proposed solution:
“[A]s the president sees fit” under Dubya was waterboarding. Abu Zubaydah was reportedly co-operating until the heavies stepped in and started treating him with some aqueous “respect and friendship”.
I really think you have the situation backwards.
Cheers,
January 26, 2010, 12:28 pmzuch says:
Those that think that war criminals ought to be treated as anything else than criminals. Giving them the status of “combatant” is far more than they deserve. Calling them bone-headed criminals is closer to the truth, but of course this doesn’t serve the purpose of the “Terra-ists are coming for you! They’re under your bed! Be scared and trust us! Elect us, we talk like Kiefer Sutherland! Boo!” crowd.
Cheers,
January 26, 2010, 12:35 pm1040 says:
First they outlaw testicle crushing. Then nail-pulling falls. And now, this?? We were a good ol nation of manly men that scratched our balls and belched with pride. and now obama has given us all mandatory estrogen injections (what? you believed that swine flu story??) and turned us into pansies. goose stepping pansies with toothbrush mustaches, but still pansies. ah, the sad saga of uncle sam, castrato.
January 26, 2010, 12:44 pmzuch says:
[assuming arguendo the facts as stated, which is not in the least obvious] “… which means we should treat it just the same as Yamamoto, four aircraft carriers, the biggest battleships the world has ever known, and hundreds of thousands of armed troops attacking and destroying many of our capital ships, the cities of our allies, and invading and occupying one of the largest countries in the world….”
I’m sure they appreciate the compliment. Probably does much for their stature and recruiting too.
Treating al Qaeda as the “combat wing of Islam” is also a winning policy. Next year, Jerusalem, to borrow a phrase.
Cheers,
January 26, 2010, 12:47 pmHoward Gilbert says:
“Washington had André shot, Roosevelt had the New Jersey Nazis hung” Major Andre was hung (traditional at the time for spies). The Quirin German saboteurs were executed by electric chair, which had replaced hanging in those days.
There are two examples (Jose Padilla and Ali al-Marri) of people initially detained in the criminal justice system but who, after investigation, were determined to be unlawful enemy combatants and were transferred to military custody. It was sheer luck that Padilla was detained at first as a category of person not entitled to Miranda warnings (a material witness who was to appear before a Grand Jury) and was therefore denied access to a lawyer even when he asked for it. Anything he said would not be admissible against him in a criminal proceeding, but he was not a criminal suspect and was to have been immunized in exchange for his Grand Jury testimony anyway.
Padilla’s case in May 2002 shows that the FBI after 9/11 was able to get this sort of thing straight, at least if they had a month to plan things out as they did between Padilla’s acquisition by US intelligence in Cairo on April 1 and his arrival in the US a month later.
Padilla is a concrete example of the potential disastrous consequence of inappropriate Miranda. He stated that if he had been given a lawyer he would have shut up and said nothing. When he was not given a lawyer, he became confused and nervous, started talking, and became one of the most important intelligence assets of the war.
At the same time, Padilla’s treatment was not due to any expectation that he would be detained as an enemy combatant. This is one place where treating someone the way you treat members of the mafia instead of the way you treat enemy soldiers worked out for the best. Using a trick common with organized crime, to immunize some low level mobster and then drag him in front of a Grand Jury to answer questions about the mob, the FBI stumbled into capturing an enemy combatant by utilizing the one tool of criminal justice that cancels out Miranda.
January 26, 2010, 12:55 pmzuch says:
Actually, no. What they are is clearly criminals. I hope you’re not suggesting that what they [allegedly, but obviously] did is not a crime under U.S. law and the laws of war (if applicable). Whether they are “enemy combatants” (and whether that should make a difference) is a much more nuanced analysis.
Cheers,
January 26, 2010, 12:55 pmzuch says:
All but one such case of summary execution were done by the Axis powers, Nazi Germany or Japan (see here for some discussion and references). Hardly an exemplar of behaviour we should follow. In the one case of U.S. soldiers executing Nazi soldiers out of uniform, some of the soldiers were summarily tried and executed; the mission commander however was acquitted of war crimes.
Cheers,
January 26, 2010, 1:13 pmzuch says:
What is this “Article 3″ of which you speak?
As I pointed out above, no need to Mirandize anyone if you’re not going to try them. And you’re not going to try POWs generally.
No. See my prior comment. And see Common Article 3 of the Geneva Conventions:
This applies to all held hors de combat.
You’re not among them.
Cheers,
January 26, 2010, 1:42 pmzuch says:
Huh?!?!? Where’d you make this up?
Cheers,
January 26, 2010, 1:43 pmzuch says:
I’m trying to get my head around the concept of Jose “Swing a Bucket and Collect the HEU” Padilla “bec[o]m[ing] one of the most important intelligence assets of the war”. I’m failing. Someone help me.
And the idea of not giving a criminal suspect (and U.S. citizen) a lawyer when he asks for one seems … well, a little behind the times….
Cheers,
January 26, 2010, 1:51 pmSonicfrog says:
I was listening to an interview on Bill Handel’s show of a 22 year JAG talking about this case last week. His contention was that this is a very ridged matter concerning jurisdiction – Abdulmutallab committed a several federal crimes, was apprehended by the FBI, and therefore was arrested as a criminal, and contrary to popular belief, even the President can’t just decide to move his status from one to the other. He made another point but I don’t remember it. Damn, I wish I would have blogged it when it was fresh in my mind. Anyway, the guy did present a pretty detailed case as to why Abdul could not have been moved to “enemy combatant” status.
January 26, 2010, 2:39 pmBH says:
The fault is not with the existence of the Miranda rule, but with the tactics of the interrogators who chose to give its admonishments to a suspect whose court-admissible confession was unnecessary to prove his guilt. Investigators had ample evidence to convict this suspect without any statement he might have made. So, the interrogation should have been conducted without Miranda warnings, even though any admissions or confessions would have been inadmissible.
January 26, 2010, 2:39 pmHoward Gilbert says:
Padilla was transferred to KSM around March 15 and spent two weeks in last minute training before he leaves for Cairo and is picked up by US intelligence April 1. Abu Zubaydah is captured on March 28, is subject to normal interrogation, then enhanced interrogation. At some point he tells the US that the person responsible for 9/11 previously known by an alias is actually KSM. We don’t have an exact date, but it seems likely that the US only learned about KSM a week or so before Padilla is arrested by the FBI.
So imagine what it must have been like to be in the room with Padilla when he tells them that during the two weeks before he went to Cairo he was in a crash course with KSM, Ramsey Binalshib, Amar Al-Baluchi, Mustapha al-Harsawi — you know, the guys responsible for 9/11. And they gave him disposable cell phones, E-Mail addresses, electronic funds transfer instructions, travel documents, and a cover story exactly like they did for the 9/11 hijackers. He knows what they look like, what skills each one brings to the operation, and how everything was done.
Padilla has actionable intelligence against the people responsible for 9/11, the guys who are number 3, 4, 5, and 6 on America’s most wanted list. People who the FBI didn’t really know existed a week or so earlier. This was a fabulous intelligence win.
Plus, of course, Padilla was the lead operator in the next attack on the US (“the apartments operation”) by the people responsible for 9/11 and by capturing him the US prevented the attack.
Except Padilla was not a criminal suspect. He was a Grand Jury witness. You never have a right to a lawyer while testifying before a Grand Jury. Your only right is to invoke the Fifth Amendment. If you are immunized so that nothing you say can be used against you in a criminal proceeding, then you have absolutely no right to a lawyer. Instead, you are obligated to answer under oath any question put to you by the Grand Jury. When you are released, you can be sure that you will never be a criminal suspect for anything discussed before the Grand Jury (in Padilla’s case for anything he did after July 24, 2000, the day he enlisted in the Army of Afghanistan).
Padilla never made it to the Grand Jury, and he never formally got a grant of immunity. However, the government acted as though he was immune. He never was charged with any crime for anything done after that date, nor did the government ever say he was being held as a suspect or that he even could be charged with a crime. He was, of course, convicted of old felonies he committed mostly between 1996 and 1998 but involving nothing after his enlistment date.
January 26, 2010, 3:31 pmzuch says:
January 26, 2010, 3:43 pmzuch says:
Howard Gilbert:
I still fail to see how Padilla became “one of the most important intelligence assets of the war”. Even assuming arguendo the facts as you state, doesn’t say much for our intelligence.
BTW, who else was arrested in the “apartments operation”? Oh …. no one. Right. It had been scotched at one point as being undoable. And to be honest, it was one of the more hare-brained schemes….
Cheers,
January 26, 2010, 3:56 pmzuch says:
Which has what to do with the merits of interrogating him?
Cheers,
January 26, 2010, 3:58 pmHoward Gilbert says:
The apartments operation was not hair brained. The problem terrorists have blowing something up is that the guy you try to buy explosives from usually turns out to be an FBI informant. So they came up with the idea to use the natural gas that comes with the apartment. You cannot demolish a building with only one apartment, so you need a team renting multiple apartments at different locations on the same low floor of the same building. Then natural gas is a low grade explosive, so you have to prep the building by attaching metal plates to focus the force of the explosion on the main support columns.
The only problem is getting past the credit check if the same person tries to rent multiple apartments in the same city. The rest of the operation requires simply some training and parts you can mostly buy at Home Depot. It is in some ways an elegant plan and, based on the AQ motto “if at first you don’t succeed …” I would not be surprised if they don’t eventually carry it off with a different crew and maybe a different target.
January 26, 2010, 4:23 pmzuch says:
Howard Gilbert:
Natural gas:
a). Doesn’t explode if all by itself.
b). Smells funky.
Setting it to blow up on a timer has … well, some deficiencies in planning.
Not to mention, attaching metal plates to anything inside ain’t gonna do anything. That’s sheer physics. You’ve got stuff blowing up on both sides of the plate. What result?
This is kind of like the “swing a bucket for Allah” idea. Did you see that they wanted Padilla to construct a nukular bomb?(!!!) Dismissed as impractical, you know; they then started thinking “dirty”. Kind of on the same level as torches on the Brooklyn Bridge….
Cheers,
January 26, 2010, 4:55 pmAnderson says:
So again we are back to treating these guys as something other than subject to complete constitutional protections.
No. There is no constitutional protection against being interrogated for national-security purposes w/out a lawyer present, provided that information is not used in a criminal prosecution.
January 26, 2010, 5:47 pmSonicfrog says:
And what the heck is the origin of that pdf. That looks worse than the Rathergate documents.
January 26, 2010, 6:13 pmneurodoc says:
What crime did he commit in the US? The criminal act, that of trying to blow up the plane, happened aboard a plane bound for the US which had entered US air space, in the manner which a ship would enter US territorial waters, but not landed when that attempt was made, it all happening before anyone passed through customs, and thus was admitted to the US. Isn’t that legally consequential? Wouldn’t things have been very different legally for Maher Arar if he had been allowed through customs at JFK, rather than denied admission there and put on a plane to Jordan?
January 26, 2010, 8:16 pmzuch says:
Your gummint.
Assuming you were asking about my link in this comment above.
Cheers,
January 26, 2010, 9:55 pmSonicfrog says:
I’m not saying it’s fake. I have no idea. But what the heck is that doc. There is no title page, and the quality of the copy. it doesn’t look anything like a gummint doc. should.
January 27, 2010, 1:17 amSonicfrog says:
Has it been verified? Original source?
January 27, 2010, 1:37 amWill Wills says:
The first thing I remember hearing about Umar was he was bragging to the FBI that there were 30-35 more bombers trained just like him. That by itself would have cause me to identify him as an enemy combatant. I know Bryan Ross reported that for ABC. I am surprised Holder didnt show up at his bond hearing and suggest he be released on his own recognizance. It just boggles the mind.
January 27, 2010, 9:44 amBoonton says:
I’m not sure if this hasn’t been covered already but WHAT IS THE PROBLEM?
Interrogations without a Miranda warning or after a warning are only an issue if the statements are being used against a person in court. As you all should know, you have no right to take the 5th, for example, if you are granted immunity from prosecution.
Since the physical and eyewitness evidence against the Christmas bomber is overwhelming, there is no need to enter any of his statements into the criminal trial. Simply interrogate as much as you’d like while and after the criminal trial is done. Just don’t use the info in the criminal trial, use it for intelligence.
Speaking of which, why is what the bomber did and didn’t say being released? Is it me or shouldn’t this stuff be classified? Shouldn’t Al Qaeda in Yeman be made to at least sweat a little bit at the possibility their bomber might have given up what he knows about them?
January 27, 2010, 11:24 amgeokstr says:
158 comments thus far and 34 of them by zuch. This is nothing new, as he tends to try to dominate every thread he comments on.
Zuch, it must really be a joy to have a live conversation with you. Do you try to overpower or outscream everyone you talk to in person as well, or demonstrate your clearly superior intellect by countering every clause and phrase in your opponents’ statements at length, one at a time?
January 27, 2010, 12:06 pmzuch says:
Ahhh, yes, the kerning’s off. My bad.
More on it here and here. Google is your friend.
Cheers,
January 27, 2010, 1:23 pmzuch says:
This is your problem, not ours. Keep it under your hat; thanks in advance.
Cheers,
January 27, 2010, 1:25 pmzuch says:
Not for someone of your ilk. For obvious reasons.
Cheers,
January 27, 2010, 1:26 pmSonicfrog says:
Google? What’s that????
JK
Because of the poor quality of the text, and the lack of a specific target, finding the source of that pdf. would have simply taken more time than I have to spend on such ventures. Have to go play with the Black Capped Lorikeet now. She’s screaming for attention.
January 27, 2010, 7:45 pmzuch says:
You could have tried Googling the title (in quotes). That’s what I did (to find it again).
Cheers,
January 28, 2010, 1:11 pm