Yesterday I expressed my concern about the decision to Mirandize the Christmas day bomber. Today’s Wall Street Journal has this excellent editorial forcefully criticizing the Administration’s decision to do so. Here’s an excerpt:
On “Fox News Sunday,” Chris Wallace asked White House Press Secretary Robert Gibbs whether the President was told that Abdulmutallab was Mirandized after only 50 minutes of interrogation. Mr. Gibbs said the decision was made “by the Justice Department and the FBI” and insisted they got “valuable intelligence.”
This is awful. This talky terrorist should have been questioned for 50 hours, not 50 minutes. More pointedly, Abdulmutallab should not have been questioned by local G-men concerned principally with getting a conviction in court. He should have been interrogated by agents who know enough about the current state of al Qaeda to know what to ask, what names or locations to listen for, and what answers to follow up. The urgent matter is deterring future plots, not getting Abdulmutallab behind bars.
It gets worse. Appearing before Congress last week, FBI Director Robert Mueller admitted that the HIG group essentially doesn’t even exist yet. They haven’t pulled it together.
Recall that in August Mr. Obama announced the intention to create a multi-agency HIG, transferring lead responsibility for interrogations away from the CIA and into the FBI, with techniques limited to the Army Field Manual.
And worse. As a Wall Street Journal account of last week’s Senate Judiciary hearings noted, the HIG team is intended only for interrogations overseas; the Administration hasn’t decided whether to use it domestically. In any event, that’s moot until there is an HIG team.
As the facts are emerging, it appears that this was a mistake of the first order. Abdulmutallab admitted he was from al Qaeda and was speaking “openly.” But then he was given a break and given Miranda warnings, after which he apparently stopped giving useful information.
It is instructive to compare the solicitude for Abdulmutallab’s Miranda rights with this headline story in today’s news: “Report: Al-Qaeda Aims to Hit U.S. with WMDs: Huge Attack is Top Strategic Goal, Not ‘Empty Rhetoric,’ Ex-CIA Official Says.” Would Abdulmutallab have given us useful leads to pursue in stopping such an attack had he been questioned further rather than Mirandized? Unfortunately, we will never know.
ruuffles says:
Hey Cassell, where’s the link to the WSJ’s op-ed criticizing the Bush admin for trying Richard Reid in a federal court? Is it with those Iraqi WMDs?
Give it a rest; at least Luttig had the cajones to call out conservative hypocrisy before pulling a Palin.
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January 26, 2010, 12:27 pmRPT says:
This post declares that Murdoch media corporations the Wall Street Journal and Fox News are criticizing the Obama Administration. This is not news, it is the norm on every issue. Are there are new facts revealed or is this essentially the same thesis as the last post, intended to provoke the same discussion?
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January 26, 2010, 12:31 pmRPT says:
“Would he have given us useful leads in preventing a WMD attack?” Perhaps he could have told us where Bin Laden lives? “We will never know”. I suppose not, but this is the .00000001 doctrine in action with no proferred basis in fact, only reflexive criticism.
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January 26, 2010, 12:37 pmNunzio says:
The first 50 minutes of custodial interrogation must have been the Quarles exception to Miranda. After they determined there was no more emergency threat of another explosive, they gave him the Miranda warnings.
Excellent police work. Very by the book. Sgt. Friday would be proud.
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January 26, 2010, 12:37 pmMartinned says:
Apart from being wrong in oh so many other ways, which undoubtedly will be summed up capably by other commenters, as in the earlier thread, these posts are also wrong because they — one again — assume that Al-Qaeda is an organisation like your local Wall Mart, where you can get a pretty good sense of what the organisation is up to even if you have no one to interrogate but the bag boy with the chemical underpants. That’s simply not how terrorist organisations generally, and Al-Qaeda in particular work.
Al-Qaeda is more of a terrorism brand name than anything else. Attaching the brand to attacks, either before or after, provides benefits to both Bin Laden/Al Zawahiri and the actual attacker: They both become more famous and more feared as a result. None of this requires that there is even an indirect link between, say, Al-Qaeda in the Arabic Peninsula or Al-Qaeda in Maghreb, and those guys in AfPak. It certainly doesn’t suggest that this guy would have anything remotely useful to say about Al Zawahiri’s next (first) big attack.
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January 26, 2010, 12:39 pmRPT says:
Martinned:
I believe Mr. Cassell’s, and the Murdoch media’s point is that this person knows everything about the next attack, and that the next attack could have been prevented had he not been given the Miranda warnings. This is the script now written. Therefore, as the Cheneys have been saying for months, Obama is responsible for the next attack. Period. end of discussion.
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January 26, 2010, 12:48 pmADS says:
This type of criticism is just criticism for the sake of criticism. The fact is that the author of this post, the WSJ editorial writer, and Chris Wallace have no idea what type of intelligence was obtained in those 50 minutes. This kid was a pawn of an al Qaeda franchise in Yemen. He probably only has limited information about the Yemeni franchise. While important, it is not the most serious or well funded al Qaeda franchise. Additionally, the information the underpants bomber has is most likely all information the CIA, military, and FBI have already.
You criticize because a person arrested on American soil was Mirandized. What do you have against the rule of law? Why must the United States lower its standards when there is nothing more that can be gleaned from the suspected bomber’s head?
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January 26, 2010, 12:51 pmruuffles says:
Especially if he’s defeated in 2012 and the attack occurs on a Republican president’s watch.
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January 26, 2010, 12:51 pmMark Field says:
I’m confident there’s never been a more oxymoronic statement by a VC poster. If you want to be taken seriously by anyone, then citing the WSJ editorial page at all, to say nothing of describing it as “excellent”, is... well, I’ll be polite and just say it’s the exact opposite of what you should do.
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January 26, 2010, 12:56 pmNunzio says:
Wait a minute. The Quarles exception is only to gather information for an emergency. It is not to gather “intelligence.” So the FBI can only ask “is there another bomb on the plane” or “who else was with you on the plane.”
So if intelligence was gathered, then that is a clear Miranda violation. And the President’s spokesman and others in the administration are applauding this “intelligence gathering.”
These FBI agents need to be indicted for violating this suspects 5th Amendment rights, not applauded. What kind of administration is this?
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January 26, 2010, 12:56 pmDave N. says:
ADS,
Let me get this straight. Because we don’t know what kind of intelligence might be gathered, we can’t criticize the failure to try to see what kind of intelligence might be gathered.
By that logic, let’s just close down the CIA, the NSA, and every other intelligence agency. We don’t know what kind of intelligence they might gather, so heck, there must not be any intelligence for them to gather.
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January 26, 2010, 12:57 pmMartinned says:
I think the point was that if you’re going to refuse to Mirandize someone after they’ve been arrested on US soil for committing a crime against US citizens in the airspace over the US, you’d better have a really good reason. Even assuming, arguendo, that the need to gather intelligence might qualify, there has been no suggestion that there was any likelihood of gathering any special intelligence here. The burden of proof is on those looking to avoid Miranda, not the other way around.
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January 26, 2010, 1:08 pmruuffles says:
Yet it was absolute treason to criticize the Bush admin for ignoring the “Bin Laden determined to strike” memo. Who knows, they might have stopped Sept 11.
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January 26, 2010, 1:08 pmHey Skipper says:
The first 50 minutes of custodial interrogation must have been the Quarles exception to Miranda. After they determined there was no more emergency threat of another explosive, they gave him the Miranda warnings.
Since there is no doubt Abdulmutallab could be convicted with the evidence available before any questioning took place, then why Mirandize him at all?
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January 26, 2010, 1:10 pmOne Man's View says:
Forgive my asking, but isn’t the main point about Miranda that it is a rule of admissibility? The Supreme Court has never said that the police can’t ask questions — only that if they do so without having given Miranda warnings then the answers aren’t usable as a confession to prove guilt or innocence. [And, yes, I know that there is a Due Process overlay to this the prohibits using excessive coercion in any context, but nobody has said that was the case here.]
So let’s call this exactly what it is — a reflexive use of a prophylactic rule. If there were some doubt as the the ability to convict Abdulmutallab because of a lack of evidence where his own confession might be the only useable piece of evidence then this might have made sense. But where, as it seems to be here, there are 200+ eyewitnesses and a bunch of physical evidence (scorched underwear included), the conviction seems a good bet even in the absence of using his statement. So the right play was to take all the intelligence we could get — at absolutely no cost to us in terms of prosecution.
And, to repeat the point, since Miranda is a rule of process not of substance also absolutely without any violation of Constitutional requirements.
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January 26, 2010, 1:15 pmh2u says:
One Man’s View seems to have summed this up quite nicely. Well done.
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January 26, 2010, 1:19 pmFlashman says:
Since the 1990’s, the US has had a hybrid policy approach to dealing with terrorists, especially those with a global reach. This approach, which included rendition, evolved with 9/11 to a program that included domestic prosecutions (Reid etc), rendition (which is reportedly now dead in the water), indefinite detention (Guantanamo), and military tribunals (linked to Guantanamo). Once captured, and then initially screened, the terrorist’s relative importance and need for immediate information and intelligence, dictated where he ended up in the process.
As President, Obama likely wanted to bring some clarity (he probably considered it moral clarity) to the problem, so he went after rendition (at least he’s led the public to believe he’s eliminated it as an option) and indefinite detention (which now appears to be a viable choice despite President Obama’s earlier protestations, likely more useful to a presidential candidate than a president), and an increased public emphasis on domestic prosecutions. What’s been dropped by the wayside is the military tribunal option, and the failure to use this legitimate venue for prosecution rests on President Bush’s doorstep. From the majority of reports, it appears as if the Bush Administration focused on the first three but never seriously pursued the fourth. Had his administration prosecuted at least one of the detainees in a military court he would have at least given the current administration another choice. But of course, if it was considered under Bush, it must be a bad option!
The Abdulmutallab situation only highlights the public perception of a program without focus, but it none-the-less remains a hybrid approach that is, in reality, little different from the Bush Administration’s efforts. Yet, reading between the lines, it does appear that with the current administration’s struggle to find clarity they have, instead, added considerably more public ambiguity to the situation. In other words, they have not yet worked out a systematic approach to dealing with captured terrorists. This will change over time. However, it’s no secret that the terrorists likely have gained and will maintain the initiative (both on an off the battlefield), and our incredibly slow and cumbersome legal system will likely never catch up. If I was advising the President, I would recommend a return to renditions and encourage the prosecution of some of the detainees in a military court.
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January 26, 2010, 1:19 pmUgh says:
Jesus, when did this site turn into National Review’s The Corner? GET OUT WHILE YOU STILL CAN ORIN!!!
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January 26, 2010, 1:21 pmLee Peters says:
Team America spoof of Mirandizing the Christmas bomber
Another one here
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January 26, 2010, 1:25 pmrandom commenter says:
“I’m confident there’s never been a more oxymoronic statement by a VC poster. If you want to be taken seriously by anyone, then citing the WSJ editorial page at all, to say nothing of describing it as “excellent”, is... well, I’ll be polite and just say it’s the exact opposite of what you should do.”
Given your generally thoughtful commentary on this blog I’m surprised you’d post something this weak. Either the editorial stands on the arguments it contains — and your comment suggests you didn’t read it — or it doesn’t. I don’t see any sense in the kind of virtual book-burning you’re advocating here.
As others have pointed out, it was hardly necessary to Mirandize this individual, given the likelihood of a conviction on the basis of the other evidence alone. Moreover, where attempted terrorist attacks are concerned, it seems to me much more important to exhaust any reasonable possibility that something can be learned by interrogating the perpetrator before worrying about securing a conviction. What would it have cost the administration to spend a few more hours talking to this guy before counseling him on his right to silence?
How much of your reaction to Prof. Cassell’s post, and those of other less temperate people in this thread, is just a reflexive political response? Something you might think about.
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January 26, 2010, 1:28 pmMartinned says:
Apologies in advance for a comment that is quite likely to drag the thread off topic, not to mention into a swamp of ipse dixit. Nevertheless, I have to ask:
What Battlefield???
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January 26, 2010, 1:32 pmSoronel Haetir says:
Ummm, the Bush admin completed at least one case in front of a military tribunal, not that they got the result they were after. Hamdan (bin Laden’s driver/bodyguard was sent home shortly after Obama took office, the man having completed his sentence.
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January 26, 2010, 1:35 pmChris Travers says:
I am not entirely sure. I always have to ask “what sort of WMD’s and would they be more dangerous than high explosives?” Compare 7/7 to the Tokyo Subway attacks to get some understanding of the roots of my scepticism. Similarly compare the Aum Shinrikyo anthrax attacks to the ones in the US, to just about any bombing with explosives, and again one sees how these weapons might be good at scaring people but they aren’t good at killing people unless one has a LOT of them and can combine them with good, military-grade mechanisms for delivering them.
Really, the only WMD’s that matter in this area are nuclear weapons. Everything else is just hype.
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January 26, 2010, 1:36 pmTamerlane says:
If you want to be taken seriously by
anyonethe left wing of the Democrat party, then citing the WSJ editorial page at all, to say nothing of describing it as “excellent”, is... well, I’ll be polite and just say it’s the exact opposite of what you should do. — fixedQuote
January 26, 2010, 1:37 pmChris Travers says:
I. for one, am glad that the JAGs do as good of a job as they do defending accused terrorists. I also think that in this case, military courts are better at trying these sort of cases. The only concern I have is whether some JAGs who do excellent jobs might be penalized for such good work. The fact that there might be a conflict of interest needs to be addressed. But that’s the only concern on my side.
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January 26, 2010, 1:38 pmgeokstr says:
To the ruuffles, rpts, andersons, arthurkirklands, zuchs, and the other usual leftists that will pile on here in favor of coddling slime like this in the name of a constitution that means nothing to you unless it favors the goals of the Collective: It would be fitting if you or one or more of your loved ones is on the plane or in the building or inside the blast radius of the inevitable next attack that actually is successful. Will you wonder then if the information that might have been obtained here could have prevented it? And would you then scream in rage about the failure of the CIA to stop the attack? Or is BDS a terminal, pathologically suicidal malady?
Whether we want to be or not, we are in a war for the survival of the West against a foe whose viciousness towards non-believers makes the commies look like the Amish, and whose oppression of believers is nearly as bad. They are willing to commit suicide as long as it furthers their violent religion. If we’re not willing to fight it to the death, then let’s just declare ourselves dhimmified, submit and get it over with.
Do you think that if they win, you and they will become great buds, have a few brewskies, and share heroic tales around the campfire of how you vanquished the evil Xtianists and conservatives together? It might be good for you to keep in mind that atheists and gays are the first to be slaughtered by this religion you defend so righteously for some insane reason.
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January 26, 2010, 1:40 pmMartinned says:
True. The most important example being all those legendary dirty bombs...
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January 26, 2010, 1:40 pmTamerlane says:
The bottom line is that (1) We’ve now heard three or four (maybe more by now) self-serving and conflicting stories from this administration about the interrogation of this terrorist so we clearly can’t trust the administration to honestly relate what happened. (2) We will now never know what valuable intelligence might have been gained from an effective interrogation of this terrorist by a skilled and knowledgable interrogation team. To assume that there would have been none seems ill-founded and fatuous to me.
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January 26, 2010, 1:44 pmMartinned says:
There is no war, at least no Global War on Terror. There is no threat to the survival of the US, its culture, its constitution, or to the survival of the West, etc. If 9/11 had caused 10 times as many casualties as it did, it still wouldn’t have brought Al-Qaeda one step closer to its stated goals, or changed one iota about the US constitution and American values. (Except, of course, to the extent that Americans allow themselves to be convinced by arguments from fear.)
Terrorism generally is a nuisance, and individual attacks — if successful — are a tragedy. We mourn the dead, we punish the guilty, we try to discourage and prevent future attempts, and we move on.
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January 26, 2010, 1:45 pmdr says:
What are you, some kind of slime-coddler?
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January 26, 2010, 1:47 pm1040 says:
Good to know that Paul Cassell’s comment deletion policy which has been applied liberally on this thread does not apply to this remark.
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January 26, 2010, 1:58 pmzuch says:
Prof. Cassell:
Hmmmm. Is this anything like “Bin Laden determined to strike in US”?
Glad someone’s on the ball....
Cheers,
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January 26, 2010, 1:59 pmJohn L says:
Mark Field is correct that a WSJ editorial cannot responsibly be cited as authority for assertions of fact. So does anyone know what the FBI Director actually said about the status of the HIG group? “Essentially doesn’t even exist” is meaningless as a summary or paraphrase, even if one assumes contrary to to experience that it is a good faith effort to do so.
Second, does anyone know anything about the interrogation? The post has qualifiers like “as the facts are emerging” and “apparently stopped talking.” These assertions are thought to be helpful to Prof. Cassell’s point but what is their basis?
Third, Abdulmutallab’s father went to the US with his concerns. Would have done so had he thought his son would be subject to rendition or torture? If not, this is better intelligence obtained by NOT torturing than anything provably obtained by torture.
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January 26, 2010, 2:03 pmzuch says:
Prof. Cassell:
Would Abdulmutallab have given us useful leads to pursue in stopping such an attack had he been waterboarded rather than Mirandized? How about beat to a bloody pulp so that the extent of the trauma caused heart failure?
Maybe he’d give us all the good stuff that al-Libi did. We could ask Laurie Mylroie, I suppose.
I guess we’ll never know....
Cheers,
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January 26, 2010, 2:05 pmChris Bell says:
I completely agree with this post. In fact, I think it barely scratches the surface of what’s wrong with our justice system.
For example, suppose that the feds catch someone smuggling drugs into this country. I think the feds should be free to interrogate this person as long as they wish, even using “enhanced” interrogation if they feel it is necessary. This perp certainly knows where he got the drugs from, and this could prevent future smuggling attempts. We could even pass the info along to a foreign country for use in military operations. We could save countless lives by preventing large flows of drugs onto our streets. Besides, this perp is not a citizen.
Also, the next time we arrest a gang member who is part of a gang war, I think we should interrogate him as much as we can. (Again, using enhanced interrogation if necessary.) We may be able to predict and then stop the next “battle” in the gang war, saving the lives of the gang members and numerous innocent bystanders.
We all know that our “due process” and other such rules are designed to protect good guys and have no real application to scum like the panty bomber. The government should be free to ignore these safeguards any time that the possible benefit outweighs the cost.
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January 26, 2010, 2:08 pmzuch says:
You left out “torture” and “beating to death”.
Cheers,
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January 26, 2010, 2:12 pmCrunchy Frog says:
So instead, we give him 3 hots and a cot for the next 60 or so years. What a wonderful plan.
Keep banging the torture meme, guys. Someday it’ll get traction with the American public — maybe after Washington DC is turned into a smoking ashheap. Then again, maybe not.
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January 26, 2010, 2:18 pmFlashman says:
I stand corrected on Hamdan. I’d suggest the Supreme Court’s ruling unnecessarily put the brakes on this approach. The Supreme Court’s ruling in Hamdan reflects the belief that the US must adhere to the laws of war as they currently exist. Why? First, international law establishes an agreed-to moral and ethical standard by which “civilized” nations wage war. Second, failure to adhere to the Geneva Conventions may place US troops at risk of abuse by other nation-states. Of course, al Qaeda is not a nation-state, and there is no mechanism for an unrecognized non-state actor to sign international treaties. To allow them to do so could be the first step in the deterioration of the nation-state and establish a pattern that would be impossible to manage, potentially giving de jure recognition to a variety of non-state actors that do not and should not have any standing in the community of nations.
Neal Katyal, the Georgetown law professor that argued successfully for the Hamdan defense at the Supreme Court, has characterized the Bush administration’s efforts at establishing military tribunals after the Hamdan ruling as being “grounded in politics.” Though in part true, such efforts are also grounded in policy, and the administration’s efforts to work around the margins of the Supreme Court ruling is a natural course for the executive branch to take given the type of threat international terrorism poses. However, it’s possibly the current administration’s belief, with the possible exception of al Qaeda, that the threat of terrorism to the US is limited, which is Martinned’s point.
To Martinned: Broadly speaking, “battlefield” is where we find the alleged enemy. In this case, al Qaeda, or those claiming to be working with or for al Qaeda. I probably should have said “battlespace” or left the comment out. The problem with terrorism is developing a discreet and generally accepted definition that makes reasonable debate possible. Terrorism may be like pornography.....
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January 26, 2010, 2:23 pmbailey says:
Yesterday, the kossites were saying that the 50 minute figure was a lie. Today, only a rabid right wing monster would think that 50 minutes of interrogation was insufficient. Guys, if you took a vote anywhere other than on the Daily Kos, do you think your position would win? You sound foolish and certainly don’t address any of the criticisms raised of the stupid decision making. Why should Cassell bother given how ignorant the responses are?
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January 26, 2010, 2:25 pmzuch says:
... with Geokstr leading the Cheetoh-Eaters squadron of the Chairborne Division of the 101st Fighting Keyboarders. He’s got his BFG3000 locked and loaded.
Yet Obammie the Commie makes Geokstr wet his Depends™... Go figure.
Cheers,
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January 26, 2010, 2:26 pmMartinned says:
Fair enough. Thanks for the nuance.
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January 26, 2010, 2:33 pmShelbyC says:
Wow. the intelligence and insight of the lefties on this blog continue to astound.
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January 26, 2010, 2:35 pmh2u says:
It’s the BFG 9000, zuch. At least get the video game reference right if you’re going to be a smarmy leftist troll.
Do a little research before spouting off next time.
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January 26, 2010, 2:39 pmDangerMouse says:
Yet Obammie the Commie makes Geokstr wet his Depends™... Go figure.
He’s got his BFG3000 locked and loaded.
Libs aren’t serious about terrorism. We get it. Every mocking argument to diminish the threat only serves to scream out more loudly that libs couldn’t care less about terrorism. Fine.
Back in the real world, the American people generally are not going to look kindly on a policy that, as Nunzio puts it, says “these FBI agents need to be indicted for violating this suspects 5th Amendment rights.” It seems that the game the libs play is: “the Constitution would be a suicide pact if terrorism were really a threat, because America is too darn powerful anyway and deserves to be cut down a notch, except of course it’s all academic nonsense because terrorism isn’t a real threat and so these hard issues aren’t so hard after all.”
I think that there are difficult legal issues here, and that the threat of terror is real enough that they need to be worked out carefully given the security needs of the country and also with due regard for the structures of government power intersecting with individual rights. But there’s no sense talking about that with someone who is spouting BFG 9000 references or mocks people. As I said, libs aren’t serious.
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January 26, 2010, 2:47 pmRPT says:
Wouldn’t it be nice—and enhance the value of the debate—to eliminate the use of certain conclusionary and pejorative terms like “leftist”, “commie”, “troll”, et al, in these discussions. It’s all anonymous bravado. No one would talk like this in person. These are serious questions and deserve serious discussion. Geokstr and I reached a truce on his objection to a certain term, which I have not used since. This made sense because the use of it added nothing to the merits.
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January 26, 2010, 2:49 pmDerHahn says:
If I was advising the President, I would ... encourage the prosecution of some of the detainees in a military court.
Flashman, what purpose would these prosecutions serve?
IIRC, the point of using military tribunals instead of civilian prosecution was the necessity for flexibility in the admissibility of evidence that wouldn’t have been gathered using the ‘Sgt Friday’ rules. The end result in either case, as I see it, would be the same – incarceration for a specified term or, possibly, the death penalty.
The use of military tribunals doesn’t address the point of contention here, that Abdulmutallab may have possessed information that we could find useful in conducting military operations (overt or covert) against AQ or other terrorist organizations. You could argue that placing him in that jurisdiction might have enabled further questioning by bypassing Miranda (though my understanding is the UCMJ has similar requirements), but so would have simply declining to prosecute him at all.
The problem comes not from what court system tries him (if any) but the fetish some people have for criminal prosecution of people who likely don’t care if they spend their life in an American jail so long as their attack is successful.
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January 26, 2010, 2:50 pmMartinned says:
I hope that comment wasn’t meant to refer to my remarks earlier. I certainly didn’t mock anything. Anti-terrorism is a very serious matter, and one that we should consider carefully.
(I’ll leave for another day whether I should count as a “Lib”. That depends on one’s perspective, and given what I know about DangerMouse’s perspective, I’d suspect that he considers everyone to the left of Bill of Reilly a liberal.)
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January 26, 2010, 2:51 pmMartinned says:
What else would you propose? Letting him go, just because he (allegedly) doesn’t care about being in prison?
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January 26, 2010, 2:53 pmPLR says:
I read the WSJ editorial page, but certainly not for the truth of what is asserted therein.
Prof. Cassell and others may be more credulous.
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January 26, 2010, 2:55 pmOren says:
That is rather broadly speaking indeed. In fact, it’s so broad that every capture is a battlefield capture since, by definition, if we made a capture there, it must be a battlefield! One strains to imagine why those that wrote the laws on battlefield captures would have included that meaningless qualification in the first place.
A more reasonable definition suggested by Ex Parte Milligan is whether or not the civilian government operates in the location where the suspect is seized. Since the Detroit has not yet collapsed into total lawlessness, and the civilian government and courts do operate there, it follows that Detroit is not a battlefield in any reasonable sense of the term (at least in the literal sense, surely Detroit is a “battlefield in the War on Poverty” but such figurative use can hardly be said to be legally meaningful).
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January 26, 2010, 2:57 pmAllan Walstad says:
Chris Bell: Thank you for inadvertently (at least, I assume your post was not ironic) providing an example of what concerns many of us about the assertion of arbitrary, extra-Constitutional government powers. “Ordinary” criminals kill thousands of people a year. The very same arguments for doing whatever the feds want to do with terrorists apply to “ordinary” criminals. The argument was had a long time ago, and the issues were fairly well settled. Expansions of government power ostensibly for one purpose get used more broadly sooner or later, usually sooner. Think RICO. It may be that there are costs associated with adhering to principles. I go along with Ben Franklin’s comment about those who would trade liberty for a little (and it really is a little) security. Al Q and their ilk offer precisely zero threat to this country’s existence and way of life–unless through hysterical reaction we lower ourselves toward their level and, by squandering our resources on stupid wars, weaken ourselves for when the time comes to face serious adversaries.
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January 26, 2010, 2:58 pmzuch says:
Unless Geokstr is posting from Wazirstan (which he isn’t), my point stands. Operation Yellow Elephant is a resounding success. The chickenhawks have been well recognised.
Cheers,
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January 26, 2010, 2:59 pmAnderson says:
I’m a common noun! Whee! Gotta print this thread off for Mom!
... I continue to be puzzled exactly how Prof. Cassell and the WSJ think they know everything that’s going on.
Not to attribute too much savvy to the feds, but if we were continuing to send in interrogators periodically, would we announce that fact?
Or would we prefer al-Qaeda to read the news and see that we quit asking him any questions after 50 minutes?
Like I said, our gov’t may not be that clever — but it seems like a pretty obvious tactic.
Hence, Prof. Cassell’s posts about this topic are NOT reactionary, ignorant, partisan rants, but actually part of the COINTEL process. Well done, Professor!
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January 26, 2010, 3:01 pmzuch says:
Huh?!?!? Did I accidentally click a link and end up on RedState or Freeperville?
Cheers,
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January 26, 2010, 3:01 pmOren says:
I think it’s clear he premeditated murder against US citizens. The death penalty seems appropriate in this scenario.
Actually, I have to second that, since it’s true.
The counterpoint is that I don’t think some of the conservatives on this site are serious about complying with the dictates of the Constitution, even where they admittedly limit our ability to pursue our goals with the most efficiency.
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January 26, 2010, 3:03 pmAnderson says:
... Of course, my exposing the above tactic makes me a terrorist-loving slime-coddler. But then, Geokstr has already warned y’all of that.
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January 26, 2010, 3:03 pmzuch says:
IIRC, attempted murder doesn’t carry a capital sentence.
Cheers,
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January 26, 2010, 3:05 pmAnderson says:
First, international law establishes an agreed-to moral and ethical standard by which “civilized” nations wage war.
People keep repeating that, without the slightest regard to whether it’s true.
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January 26, 2010, 3:06 pmFederal Farmer says:
Agreed. We cannot sacrifice our sacred beliefs in the hysteria of an attack, successful or failed.
What good is it to save American lives if we have to toss away the freedom that a great many American’s have paid for with blood?
As Judge Napolitano correctly pointed out, Patrick Henry did not say “Give me safety or give me death.”
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January 26, 2010, 3:06 pmNunzio says:
Love is a Battlefield — Pat Benetar.
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January 26, 2010, 3:10 pmzuch says:
Nonsense. I am serious with serious disputants. Those such as Geokstr that think a). that al Qaeda is a more serious existential threat than Satan Incarnate, and b). that liberals aren’t serious about terrorism because they see no need to wet themselves and then rip up the Constitution and do al Qaeda’s job for them, are the ones that don’t deserve a “serious” appellation. I say surveille, identify, arrest terrorists and lock them up until they rot. On the actual battlefield (and not in cages like some Ctheney bird hunt), if you can identify them, shoot them. But you can trash my Constitution after you pry it from my cold, dead fingers.
Cheers,
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January 26, 2010, 3:16 pmMark Field says:
You won’t get any argument from me about this.
I admit I didn’t read it. I can’t afford the hit to my IQ, which declines with every word I read there.
Look, there are certain sources which have established track records when it comes to factual statements. The WSJ editorial page is a fact-free zone; you can’t take anything it says at face value. Thus, citing it at all is something no thoughtful person would ever do. What he might do instead is find another, reputable source for the same fact(s) and cite that. I do that sort of thing all the time (not with the WSJ, obviously, but with blogs or other sites which have a poor reputation or obvious bias).
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January 26, 2010, 3:18 pmMark Field says:
I’m pretty sure that post was ironic.
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January 26, 2010, 3:20 pmDangerMouse says:
What good is it to save American lives if we have to toss away the freedom that a great many American’s have paid for with blood?
So the Constitution IS a suicide pact? If not, then what are you proposing that we do?
Actually, I have to second that, since it’s true.
Thanks.
The counterpoint is that I don’t think some of the conservatives on this site are serious about complying with the dictates of the Constitution, even where they admittedly limit our ability to pursue our goals with the most efficiency.
I think that one way of putting it is, conservatives are wary of letting judges and lawyers make foreign policy decisions that are more likely to be their own policy preferences instead of trusting them to state what the Constitution actually requires, especially given that the judges have a tendency to impose their own social policies in other areas instead of stating what the Constitution actually requires. The failure of the judiciary to maintain its impartiality is a big factor here.
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January 26, 2010, 3:25 pmPaul says:
The philosophy has changed — It is hard to say at this point for better or worse (results will speak) — The Obama administrations goal is to catch the terrorist at the airport. The problem is that he got on the plane. The Bush administrations goal was to stop the terrorist from getting to the airport in the first place. The new goal — if successful — will certainly be a less costly ($) approach. If it works it will also result in a better national image. Again — the question is the results.
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January 26, 2010, 3:28 pmMartinned says:
Let me just repeat a bit from my earlier comment:
Where does foreign policy come in here, exactly?
Don’t make me bring up the terrorism deaths vs. car accidents numbers again, please, I beg you.
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January 26, 2010, 3:32 pmMartinned says:
I don’t think that quite sums it up right. As pointed out above, would this guy’s father still have turned him in if he thought his son would end up in some law free black hole for the rest of his life? In the end it is still about making sure the terrorist doesn’t make it onto the plane.
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January 26, 2010, 3:33 pmorca says:
Americans are much more likely to get gunned down by a patriot exercising his second amendment rights than by a pantie bomber.
So, at least the second amendment is a suicide pact.
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January 26, 2010, 3:34 pmRPT says:
Ha. Certainly not Little Green Footballs, but maybe The Corner. Actually, it’s a meaningless term. Several decades ago in my post-grad school, pre-law time, I TA’d the UCLA intro Political Science class, where the professor used a pretty mundane left-center-right spectrum to discuss American politics. We had a problem with it then. Now, all it means is “whatever I don’t like”, without any correlation to any generally accepted meaning or definition. Dennis Prager’s “left” is different than Glenn Beck’s “left”, or Steve King’s (R-I) “left”, or Profs. Somin’s or Lindgren’s, for that matter, and I do not put Prof. Somin him in the class of the other four characters. It just gets old reading the same blah blah hyperbole as a substitute for substance.
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January 26, 2010, 3:39 pmPaul says:
Martinned:
I’m not sure that a military trial is the same as a “law free black hole” — President Obama was elected on the basis that he had an idea how to continue to get information without the black hole. I think the concern is that his solution goes too far ie we have lost the information. His approach works “at the airport”. Continued success here will support his approach. I doubt there was info in this guys head about the specifics of another attack (who knows I just doubt it). There may have been information on the planners ie who, what,where,how to contact etc
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January 26, 2010, 3:46 pmDangerMouse says:
Don’t make me bring up the terrorism deaths vs. car accidents numbers again, please, I beg you.
Americans are much more likely to get gunned down by a patriot exercising his second amendment rights than by a pantie bomber.
I ask what you would have us do, and you respond with the “terrorism isn’t a problem” argument. I’ll mark you guys down as “not serious about this issue.”
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January 26, 2010, 3:49 pmMark Field says:
I should add to my previous comment that, in general, newspaper editorial pages are a bad place for facts. This is true across the board. The WSJ editorial page tends to be particularly egregious, but it’s far from unique.
I’m making no judgment here about the news section of the WSJ, but others are starting to.
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January 26, 2010, 3:50 pmorca says:
The federal government now spends more trying to defeat I.E.D.s than is does trying to defeat cancer.
At what point will you Righties admit you’re not serious about protecting Americans?
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January 26, 2010, 3:55 pmRowerinVA says:
Martinned says
So the only way for the US to respond to acts of war is if they threaten the “survival of the US, its culture, its constitution, or to the survival of the West?” Japan and German never posed that great a threat in WWII — even Germany’s nascent nuke program was meant to preserve its power in Europe, not to invade the US. In fact, I don’t believe that any attack on the US since its founding would satisfy your criteria. And even today, one nuclear missle, or ten, or one hundred, doesn’t satisfy your criteria.
I don’t subscribe to the view that we should just learn to live with the occasional 3000-killed mass event. And I have no intention of “mov[ing] on” just because you are uncomfortable with the fact that someone else is forcing war upon us.
There is a real difference between a mere crime, committed by a citizen, and an act of war committed by a non-citizen organization. Sure, there can be gray area in between, as with some of the U.S. citizen Muslims whose terrorist plans were disrupted in the very early stages, but those have been dealt with under the criminal system, and that’s not controversial. The attacks we’re talking about here, such as the airline attack, aren’t remotely close to the gray. They are black-and-white acts of war.
You don’t refuse to fight back in a war just because the other side has no real chance of winning. Heck, that’s when you fight back best, isn’t it?
Remember: just because he’s a criminal doesn’t mean he’s not also a criminal combatant.
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January 26, 2010, 4:08 pmDangerMouse says:
The federal government now spends more trying to defeat I.E.D.s than is does trying to defeat cancer.
Tell you what: to see if your snark makes any difference at all to Americans, why don’t you advise Democrats this year to campaign on that note. “Dems Say: It’s better for one plane to blow up than for one person to die of cancer!” “Nancy Pelosi takes advice from Nunzio and Volokh Conspiracy Lib Blog Commenters — vows to prosecute FBI officals for asking questions, and vows to switch money preventing terror attacks towards cancer research!”
See if that’s popular with the people.
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January 26, 2010, 4:09 pmShelbyC says:
Wait, you’re saying we should take seriously somebody that says crap like this:
Why should we take that any more seriously than the dipsh*ts upthread that are talking trash about Prof Cassel without bothering to show where he is wrong?
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January 26, 2010, 4:19 pmPerseus says:
Astounding: terrorism as mere nuisance.
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January 26, 2010, 4:20 pmorca says:
It will be with the millions of Americans who are suffering from cancer.
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January 26, 2010, 4:21 pmMark Field says:
Two points:
1. You apparently are unfamiliar with Ritholz. He’s a popular blogger whose politics are generally right wing on economics, more libertarian on social issues. He has a solid reputation for facts.
2. The burden is not on me or anyone else to show that Prof. Cassel is wrong. The burden is on him to show that he’s right. Citing the WSJ editorial page does not constitute such a showing. Face it: if I started a comment by citing some random posting at DailyKos as a factual source, would you take the rest of my argument at face value, or would you insist that I actually support my factual premise?
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January 26, 2010, 4:30 pmSeaDrive says:
Who made the decision to Mirandize Abdulmutallab?
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January 26, 2010, 4:33 pmMartinned says:
Don’t be silly. There is space between your “not a suicide pact” argument, which I refuted, and your characterisation of my reply as “terrorism is not a problem”. Terrorism is a pretty big problem, well worth at least some of the billions that are spent on it.
Now you’re overstating your case. Anyone with nukes and the willingness to use them is a legitimate threat to the United States, because those nukes can be used to hold the US hostage. Thus, the Soviet Union was a threat to the United States, just like a nuclear Nazi Germany would have been. (Even without the nukes, a counterfactual with Nazi Germany controlling all of Europe, from the Atlantic to the Ural mountains, is an interesting possibility to ponder.)
Incidentally, this “threat to the West” language came from geokstr’s comment that I was replying to.
In any case, the US may wage war for other reasons than self-defense as well. It may come in aid of an ally (WWII), it may respond to a request from the Security Council (Korea), and possibly it may even stand up for certain peremptory norms of international law (Kosovo), though that question remains unsettled at law. But none of that matters for the present thread, which is about someone who tried to blow up an airplane in Detroit, not about the US going to war in Afghanistan, Iraq or wherever.
Just because there is no good way to spin it, doesn’t mean it isn’t true.
You added the “mere”, I didn’t. From the point of view of society as a whole, cancer, car accidents and hurricanes are also a nuisance, but none of them are a “mere nuisance”.
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January 26, 2010, 4:40 pmBob from Ohio says:
Good. Cancer research attracts extensive private donations and for-profit reserach, IEDs don’t.
Protecting our soldiers if possible is a good goal. A core government function unlike medical research.
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January 26, 2010, 4:46 pmShelbyC says:
Maybe with the dailykos, although if it were, say, the nytimes I’d probably just try to show where it’s wrong. But here you don’t have any source that the facts being cited are wrong, just an opinion about the source of said facts. Prof Cassel disagrees.
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January 26, 2010, 4:48 pmBored Lawyer says:
The problem some posters have here is distinguishing between a fundamental Constitutional right and a prophylactic rule adopted by the Supreme Court about 45 years ago. The republic stood for 190 years until then without Miranda and would still stand even if we overturned it tomorrow.
More importantly, as some have already pointed out, Miranda is merely a prohylactic rule meant to insure that torture and coercion are not used. There is no constitutional violation for breaching Miranda. All that is being suggested here is talking to the person. Not torture, not a violation of Constitutional rights, but talking. Talking. Das ist alles.
I find it hard to believe that the interviewers got all they could out of him in 50 minutes. Does that mean I know he might have said something valuable had they not advised him of his “right to remain silent.” No, but there is a pretty good chance additional valuable information was there to be had. That has now been lost.
Here, given that there is already abundant evidence to convict, the prosecutorial need for use of his statements as evidence at trial is zero. So the decision was bone-headed, myopic and seems to reflect the view that terrorism can and should be handled no different from any other criminal enterprise.
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January 26, 2010, 4:52 pmMartinned says:
Well, yes and no.
I think most commenters, and certainly myself, can live without Miranda. I think the problem is the implication that the accused was denied the constitutional rights summed up in the Miranda list and the suggestion that he should have been denied those rights for longer.
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January 26, 2010, 5:07 pmMark Field says:
I’m not going to spend my time fact-checking the WSJ editorial page. Its mistakes are infinite, my life is not. I’m just going to dismiss without bothering any argument which relies on such facts, just as you would with DK.
The really critical fact here — how much Abdulmutallab might have revealed if he hadn’t been Mirandized — is both unknown and unknowable. The claimed fact that he stopped talking after being Mirandized is unconfirmed by any reputable source, and I’m not sure I’d accept it at face value if it had been, intelligence issues being what they are.
Then there are the numerous assumptions (NOT facts) which he quotes, e.g.,
1. “Abdulmutallab should not have been questioned by local G-men concerned principally with getting a conviction in court.”
2. “He should have been interrogated by agents who know enough about the current state of al Qaeda to know what to ask, what names or locations to listen for, and what answers to follow up.”
In short, Prof. Cassel has no actual argument in this post. What he does have is an opinion that “IF “A” is true, and IF “B” is true, etc., then by gosh the WSJ thinks Obama made a mistake and so do I”. That’s not worth the electrons it was printed with.
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January 26, 2010, 5:12 pmFederal Farmer says:
The “Constitution is not a suicide pact” argument is frivolous. Reductio ad absurdum. I’m all for taking the war on terror to the enemy. If that means covert ops in Yemen...go for it. But on this underwear bomber, like the shoebomber and the Ft. Hood shooter should be handled criminally.
The big step here is to stop training people to be helpless victims.
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January 26, 2010, 5:17 pmBored Lawyer says:
Let’s not deal with “implications.” Let’s deal with the issue at hand. The choice was (1) stop the interview after 50 minutes and Mirandize him, but risk losing valuable intelligence or (2) continue the interview but risk losing use of any confession or admission at trial. Neither choice involves overturning the Constitutional order.
In the context of the case (see my prior post)and what was (and still is) at stake, I would think any sane person would choose (2). That the Administration chose (1), in my mind, subjects it to criticism.
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January 26, 2010, 5:20 pmFederal Farmer says:
Equating WSJ to DK is absurd and damages your credibility.
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January 26, 2010, 5:21 pmMark Field says:
I wasn’t referring to anything other than the editorial page at the WSJ. The news section is a legitimate source for facts.
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January 26, 2010, 5:40 pmMartinned says:
So did what’s-his-name have the right to remain silent, etc., during those first 50 minutes or not? It’s not like he wouldn’t know about them, anyone who speaks English can sum up the Miranda rights. If he had those rights the whole time, then why did he suddenly stop talking when he was reminded of them?
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January 26, 2010, 5:46 pmRPT says:
1. Did “the administration” or Obama personally choose to stop questioning the guy, or was it some lower level lawyer or law enforcement officer? Does anyone know the real answer? Is Obama responsible for all such decisions? Does anyone know if there is some uniform policy or is this just an assertion?
2. Re Daily Kos and other sites and cites, I find that the better sites are those which embed videos and link to or excerpt actual documents or primary sources and images. The posts on Kos do this quite a lot, and many of the posts there are somewhat lengthy and dense with data, sometimes like Nate Silver’s. This work by the poster allows the reader to look at the evidence or data and make his own judgment. I never read the Kos comments. Other sites have posters who are known for doing a lot of source document reading and digesting, like Marcy Wheeler on Firedoglake in certain subject areas. People who actually read Friday afternoon document dumps are more credible than those who make conclusions without facts.
3. Sites with short comments, like The Corner, tend to be just short snarky comments with no data. Everyone will have their own preferences, which occasionally likely transcend their personal ideology, as is demonstrated on the VC.
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January 26, 2010, 5:46 pmMark Field says:
This is pretty much my view of the left hand side of the main page. I find those posts generally reliable (which isn’t to say necessarily correct, just that the facts stated are true). I wouldn’t cite one of those posts here, though, because the discussion would get distracted. It’s easy to find a non-controversial source when something really is a fact.
This doesn’t apply when citing something which tends to undermine the position of the biased/unreliable source. Thus, if I cite Fox, it’s only because I can say “Even Fox agrees.” The same applies with equal force on the other side.
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January 26, 2010, 6:09 pmTatil says:
Oh, boy, I am pretty sure that is news to most Americans.
Yes, if the only “response” that would satisfy you is shredding the constitution. If we were living in Israel, it could be different. The threat there is more real and potential pool of attackers live right inside and around the country. Even then, it is hard to live with a system where the court does not have to disclose even the accusations to a defendant or his attorney. I don’t think that is what we want for ourselves, is it?
In any case, I think it is acceptable to keep a parallel judicial track, such as military tribunals, for those we catch outside of the US, as long as that tribunal is actually an independent and unbiased organization, where convictions will be solid even if the chain of evidence might be lighter than usual. Unfortunately, the early review process in Guantanamo did not sound like that with many innocents may have been tortured before and after their arrival and held for years before they unceremoniously got released. The “righties” ignore these cases by saying “They are all bad people, who cares?” They also don’t get riled up about expanded government power in this instance, as they don’t feel in any danger of being swept up into a torture chamber by mistake. It is much easier to cut off any protection for “them”, when you feel confident you could never be considered one of “them”.
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January 26, 2010, 6:16 pmTatil says:
Well, he does not look like the sharpest tool in the shed. Why does any criminal confess in the absence of any formal plea deal?
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January 26, 2010, 6:19 pmMartinned says:
That’s one answer. If that is all there is to it, I’d have to agree with those earlier commenters who argued the Miranda issue isn’t very important.
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January 26, 2010, 6:42 pm~aardvark says:
There is no “bookburning” involved here. WSJ editorial page staff–and columnist–are notorious for their myopic, factless blather. The arguments don’t matter if the facts they are based on have absolutely no credibility–as you may know, a false basis will lead to false conclusions despite impeccable logic from point A to point B. If you want to corroborate the facts and then cite the editorial’s argumentation as valid BECAUSE the facts have been verified, that’s fine, but citing them for the facts AND argument is nonsense.
This is a part of the problem with faulty information–you get lost between the noise and the message. From what’s become available from a variety of intelligence sources, there is no tangible evidence that the Yemeni “al Qaeda” has any relation to the original OBL’s “al Qaeda”. Imitation is the sincerest form of flattery even among terrorists. So this information point is completely irrelevant to the larger one. We could be debating the merits of trying terrorists in civil courts, but self-declarations of membership in al Qaeda are not a reasonable part of that equation–along with other “facts” that WSJ, MSNBC, John McCain (even after being called on his mistakes) kept propagating. For example, Abdulmutallab was not flying on a one-way ticket, he did not pay more than an average unrestricted non-first-class fare, his purchase of tickets with cash does not raise red flags (as it is purfectly normal and customary for that part of the world), the flight’s origin from Ghana was also not a red flag, and there were no specific rumors/intel circulating that would help to identify this guy in advance. Given such an abundance of false information dumped on us by the press, but politicians and by pseudo-experts, why would anyone consider blatantly political charges leveled by one side against the other–before the facts have been presented and verified–to be anything more than a political attack.
Have mistakes been made? For sure–both before and after the act. But most of us–Paul Cassel included–do not have access to complete and accurate information on the case. We can express opinions–and many do–but let’s not pretend that it’s the final or even definitive word on the subject.
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January 26, 2010, 7:03 pmBored Lawyer says:
Sure he had the right to remain silent. He could have invoked it any time. The point is he didn’t. True, he likely either forgot or perhaps, as a foreigner, was not aware of those rights. (The typical American has heard the Miranda rights innumerable times on TV. Myabe Nigerians haven’t.)
Usually, that is tough luck. The Govt. is not obligated to remind you of your rights, it just cannot affirmatively abridge them.
The point of Miranda is that the Govt. has to remind him of these rights to ensure there is no coercion. That is a prophylactic rule not required by the Constituion. If it fails to do so, it loses out on the ability to use that evidence.
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January 26, 2010, 7:55 pmOren says:
That’s amenable to a simple statutory fix.
I remember reading a while back an amusing story about the citizens of Morocco (or was is Algeria?) starting to demand their Miranda rights at about the time that Magnum PI or some other US cop show starting airing on TV there. It was much to their dismay when it was explained that those rights did not apply to them.
Not much relevance, but it’s a damn good story and, if true, a very powerful reminder that America’s soft power greatly exceeds her hard power.
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January 26, 2010, 8:27 pmMartinned says:
Same here in Europe. Even after last year’s ECtHR rulings about the right to representation prior to trial, you still don’t have the automatic right to have an attorney present during questioning under ECHR law, or under most national European constitutions. (Under Dutch law, as amended after this new ruling, you now have the right to consult with your attorney, but not to have them with you in the room as you are being questioned.) But ask people in the street, and they’ll blindly assume they have the same rights as the people in those American law shows.
I’m not sure if that is true in this case. Given the precedents set by the Bush administration, this man would have been in some doubt as to whether he was being treated just like anyone else, or whether he was being subjected to the Padilla/GWOT/Unlawful Enemy Combatant treatment. Reading him his Miranda rights affirms (confirms?) the government’s POV that it is the former.
If the government’s agents were aware of his uncertainty, or should have been, and if they allowed this uncertainty to continue much longer than necessary, I would consider that a reasonable theory for a violation of substantive rights other than his Miranda rights.
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January 26, 2010, 8:47 pmMnZ says:
I’m not sure if that is true in this case. Given the precedents set by the Bush administration, this man would have been in some doubt as to whether he was being treated just like anyone else, or whether he was being subjected to the Padilla/GWOT/Unlawful Enemy Combatant treatment. Reading him his Miranda rights affirms (confirms?) the government’s POV that it is the former.
If the government’s agents were aware of his uncertainty, or should have been, and if they allowed this uncertainty to continue much longer than necessary, I would consider that a reasonable theory for a violation of substantive rights other than his Miranda rights.
Huh? So, we should read him his Miranda Rights so he feels more at ease. I would posit that releasing him would also place him at even greater ease.
Good God...
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January 26, 2010, 9:09 pmMartinned says:
Only he doesn’t have the right to be released. He does, however, have the right to remain silent. If the government somehow contributed to his (not unreasonable) belief that he didn’t, or otherwise sought to compel him to speak, his right to remain silent has been violated.
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January 26, 2010, 9:35 pmRicardo says:
As an upper-crust Nigerian who lived in London for a bit and also previously visited the U.S., I’m pretty sure he’s seen at least one American cop show or movie in his time. I’ve never been to Nigeria but as a country with a large English-speaking population, It’s almost a certainty that a lot of American programming is available on cable TV.
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January 26, 2010, 10:09 pmSarcastro says:
It’s clear to all non-crazy people that terrorists are about to end America and the only thing standing in their way is us torturing the crap out of them.
Sure, we manage to get information out of criminals, but that’s mostly luck.
Point is, if you don’t want the Constitution to be a suicide pact, we need to break every law we know (they’re Obama’s laws anyhow), just like those badass cops in the movies do! Only we won’t be cops because terrorists are like cop kryptonite, making law enforcement lose all their powers.
In other news, Obama is a clear and present danger to the US, as are all socialist-marxist-liberals. Hell, their economic policies have probably killed more than the terrorists! If the Constitution is not a suicide pact, we need to do something unconstitutional about them too.
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January 26, 2010, 10:29 pmHoward Gilbert says:
There is no constitutional right to remain silent. There is a right not to be compelled to give evidence against yourself in a criminal proceeding. Since someone in custody may feel compelled to speak, the court requires an arresting officer to issue the warning “You have the right to remain silent” before anything he says can be admitted as evidence. The purpose of the warning is to cancel out any chance that of psychological pressure or an imagined threat would compel speech in violation of the Fifth Amendment. There is, however, no real right to remain silent in the sense that that right could be “violated”.
You do have a right not to be tortured, or to be subject to abuse or intimidation or threats during questioning. These are substantive rights that might be violated. However, if you are not abused but simply believe that you are compelled to speak, then that is a basis to suppress what you say as evidence but not a violation of rights.
If Abdulmutallab is (or at least regards himself as) a soldier in an enemy army then the rules for his detention fall under international law and not US domestic law, including the Constitution. In that case he has an absolute obligation to give his name, rank, and serial number or its equivalent. He cannot remain silent, but having provided this information he cannot be compelled to provide any additional information.
As someone getting off an international flight, he is also subject to detention for immigration purposes. He had a visa which would be valid as a civilian, but which would be invalid if he is an enemy combatant. Someone who is being questioned about his immigration status also does not have a right to remain silent. He has to answer the questions put to him (“What is the purpose of your visit to this country. How long do you intend to stay. Did you declare those underpants on your customs forms. What is the value of the material you were smuggling into the country in your underwear. Do you have a receipt to prove the value of that material.”) The Fifth Amendment and Miranda do not apply to immigration and customs questions.
It is not against the law to be a soldier in a foreign army, even one at war with the US. That is a reason for being detained by the military or being refused entry into the US by Immigration, but it is not a criminal offense. Of course, we would not know and today still do not know exactly who he was associated with, so we cannot say if he was or wasn’t an enemy combatant. We have a right to ask these questions. He could remain silent, but he is not entitled to a Miranda warning because he is not in custody as a criminal suspect until the question is resolved.
You may say that he committed a crime in your opinion. You may say that dozens of people saw him do it. It doesn’t matter. He is not in custody as a criminal suspect until the Federal government makes the decision to handle his case as a criminal matter. They could decide just to deport him. It would be a really, really dumb idea, but it is a legally allowable course of action. They could detain him as an enemy combatant. They could decide he is to crazy to stand trial and commit him to a mental hospital. He doesn’t have to be Mirandized until the government decides to Mirandize him. The only consequence is that anything he says before being Mirandized is not admissible in court.
Jose Padilla was questioned by the FBI for a month without a Miranda warning. Then he was interrogated by the military for two years. Then a year and a half later he was released from military custody, arrested by civilian authorities, and Mirandized before being prosecuted in Miami on the old felony charges. Nothing he said during the previous three and a half years were introduced into his trial in Miami, so his Fifth Amendment rights were not violated. If they could wait three and a half years before Mirandizing Padilla, they could wait more than 50 minutes before Mirandizing Abdulmutallab.
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January 26, 2010, 10:44 pmRicardo says:
For those comparatively few Africans who hold credit cards, a round-trip ticket that could cost over $2,000 would probably exceed their credit limit. You’re right: cash is the norm there.
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January 26, 2010, 10:57 pmJeff Hall says:
I don’t get it. How is giving Miranda warnings to admitted enemy combatants a “sacred belief”? We’ve never done this in the two centuries before this creep put explosives in his pants. Were we “tossing our freedoms away” in every war we’ve ever fought until now? Huh.
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January 26, 2010, 11:54 pmFederal Farmer says:
It’s not your daddy’s war. He is not a uniformed soldier, therefore not a prisoner of war. He was caught in America, not some foriegn battlefield, so he’s a criminal. He is no different than the shoebomber, who was treated as a criminal during the Bush Administration.
Plus, I guarantee you he don’t know squat anyway. Send a team after al-awlaki if you want to know what’s going to happen.
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January 27, 2010, 12:00 amJeff Hall says:
I did not say that this is my Daddy’s war. Whether he is a prisoner of war is immaterial; he committed an act of war witnessed by dozens of people, and he freely admitted to being a member of a paramilitary organization with which we are at war. Unlike Mr. Reid, it was clear from the very outset that Mr. Abdulmutallab is an enemy combatant rather than a mere criminal or madman. At any rate, Mr. Reid was tried in the civilian court system after the very highest levels of government decided that it was in our best interests to do so. Mr. Abdulmutallab was Mirandized after only 50 minutes. I’m sure that the President has spent more time than that deciding what to wear for the upcoming State of the Union address.
Finally, unless you are a compulsively truthful high-ranking member of Al-Qaeda, your guarantee that he doesn’t “know squat” is valueless to me. Gathering intelligence is a slow process of accumulation and analysis. Throwing away a valuable and unexpected source like this was criminal waste. That the administration only thought it was worth 50 minutes of thought is just breath-taking.
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January 27, 2010, 12:24 amRicardo says:
The issue isn’t so much the Miranda warning. It is insisting (like the Washington Post editorial posted on yesterday) that he be placed in military custody. That’s not necessarily a violation of his rights but the burden ought to be on those who support that course of action to:
a) define “enemy combatant” in a clear manner
b) say what kind of process they want for determining whether someone arrested on U.S. soil is an enemy combatant and
c) show what facts should have led the government to immediately place him in military custody.
If the answers are a) I know it when I see it, b) whatever Obama and Holder say, and c) see (a), that’s why the discussion never moves forward. I actually care very little about what happens to Abdulmutallab individually. What I do care about is “terrorism” or “enemy combatant” being defined downward in the same way racketeering or fraud have been to the point that it begins to eviscerate basic Constitutional rights.
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January 27, 2010, 12:33 amJeff Hall says:
This is not a rhetorical exercise, nor is it a matter for the courts to decide (except afterwards with a writ of habeus corpus.) The Constitution gave us a single Chief Executive who is also the Commander-in-Chief of the armed forces. He really is responsible for who we decide to capture, who we decide to release, who the Army shoots and who the Air Force drops bombs on. If you really think that the courts and a cumbersome legal process must come into play each time we capture or attempt to kill an enemy in wartime, then you are free to petition Congress to amend the Constitution.
But until they get around to doing that, President Obama is Commander-in-Chief. If he was unwilling or unable to take on that awesome responsibility, I wish he had let us know sometime before his Christmas vacation in Hawaii.
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January 27, 2010, 12:56 amzuch says:
No. Only after conviction, and then only if it’s meant as punishment. Ask Scalia. And Thomas. Other than that, anything is fair game, Constitutionally, that is....
Cheers,
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January 27, 2010, 12:59 amzuch says:
If you really think that the law we have doesn’t apply each time we capture or attempt to kill an enemy in wartime, then you are free to petition Congress to amend the Constitution.
Cheers,
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January 27, 2010, 1:02 amzuch says:
Grasping as straws, eh? LOL. It’s rather pathetic, you know, and demeans you more than anything else.
Cheers,
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January 27, 2010, 1:04 amRicardo says:
Jeff, which is why these discussions never move anywhere. Those of us who have read the Constitution, know the historical context in which it was written and the actual early history of how the government dealt with subversive and treasonous plots (Whiskey Rebellion, Aaron Burr, etc.) know that deep suspicion of emergency powers and the power of a standing army permeate the whole document.
If you’re not going to acknowledge this, we have to agree to disagree and leave it at that as this is all well-trodden ground. Moreover, your suggestion that courts could issue writes of habeas corpus for detained alleged enemy combatants raises the question of what, exactly, courts should look at to determine the legality of detention.
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January 27, 2010, 1:10 amSarcastro says:
Al-Queda is a huge, existential threat, and Miranda is not a big deal at all!
Conversely, Corporate dollars in our politics are not a big deal at all, and besides corporate spending limits are a huuuge weight on liberty!
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January 27, 2010, 1:23 amJeff Hall says:
Of course I acknowledge these things. But the question isn’t whether we should be suspicious of the government’s actions; the question is (1) does the President have the authority to wage war and (2) should this man have been treated as an enemy combatant until we got what intelligence he had to give us? The answer to both of these clauses is “yes”.
More generally, the Constitution is a document with a purpose. It’s purpose is to defend the liberty of the “People of the United States.” Its purpose is most certainly not to defend the liberties of armed foreign invaders.
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January 27, 2010, 1:37 amRicardo says:
Yes, the purpose of the Constitution is to guarantee the liberty of the people of the United States. Whether “people” includes non-citizens is a matter of contention and depends on the issue but most people who take your line think the U.S. can designate American citizens on American soil (like Padilla) as enemy combatants just as easily.
My response is simply that the Constitution guarantees liberty by setting forth a society governed — at least within the territorial limits of the United States — by the rule of law. When I see people like yourself scoff at the need to define enemy combatant and set forth procedures for determining who is one as you just did above, I have to conclude you don’t take the idea of the rule of law very seriously.
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January 27, 2010, 1:48 amAllan Walstad says:
I’m becoming concerned that the Republican Party heirarchy really is going to run on this issue. Bush and his band of neocons alienated the people with their wars, and that’s how Obama and the Dems got control and almost shoved their ghastly health takeover down our throats. Let Obama screw himself and the Dems by getting further mired in the “War on Terror” claptrap. Focus on fiscal and individual liberty issues. Get us back to some semblance of gridlock, and with it some semblance of restraint on pols. Cassell’s opinion on the Christmas bomber has been refuted over and over in the responses on this and other threads. Enough.
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January 27, 2010, 11:58 am1040 says:
mr. reid? he prefers to go by harry, thankyouverymuch.
also, i do appreciate your succinct (summary?) judgment because i see in you a way to reduce the federal deficit. can the judiciary and the entire lumbering, tedious, expensive court system, i say and nominate jeff hall as chief arbiter of the nation. maybe you can even have a tv show so the govt can earn some revenue with the ads? but you need to add some sass to your repertoire if you wanna make it work....
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January 27, 2010, 12:18 pmzuch says:
Isn’t that: “... should this man have been tortured until we got what intelligence we wanted to hear?”
Cheers,
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January 27, 2010, 1:10 pmChristopher Cooke says:
Here is another wrinkle that seems to be missed:
what are the consequences of treating someone as a POW or “unlawful” enemy combatant? My understanding is that, unlike a criminal, a POW is entitled to be released when hostilities are ended. Do we really want to release someone in 10 or 20 years, who tried to blow up a civilian airliner? I would prefer to try him as a criminal and convict him of a crime and obtain the maximum punishment allowed by law against him. Sure, if the FBI or CIA thinks he knows important, active intelligence, they can continue to interrogate him, without Mirandizing him, and risk not being able to use the information obtained during such interrogations in his criminal trial.
I also frankly don’t see how we can infer that it was reading the “Miranda” warnings to him that made him “stop talking.” Did he suddenly think, “Oh my god, Perry Mason may get me off, I better shut up?” The notion strikes me as far-fetched. Probably, after his break, he realized he had violated his novice terrorist training, which counsels him to shut up if captured.
Anyway, as others have noted, this seems to be a somewhat hypocritical, symbolic criticism that is being used by conservatives to paint the President as “soft” on terror (did Paul Gigot write an outraged WSJ editorial over Reid’s handling? Of course not).
It would be far better to use something else than a two-faced WSJ editorial as a vehicle to prompt a serious discussion as to what we do with these types of “hybrid” persons, i.e., they are both criminals and un-uniformed combatants. I think these are serious issues and informed persons can reasonably disagree about what is to be done.
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January 27, 2010, 2:51 pmFederal Farmer says:
That is one reason I don’t care for this quasi-POW classification (Enemy Combatant) that they created for the purpose of getting around the POW protections. They claim this is a ‘War’ yet don’t want POWs. True that in our previous wars POW status was not conferred on un-uniformed combatants, which I believe were tried and killed as spies, generally. This is a new kind of War though. Everyone is plain-clothed and I worry about the slippery slope this creates with the whole ‘domestic terrorist’ focus.
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January 27, 2010, 3:01 pmAnderson says:
No. Only after conviction, and then only if it’s meant as punishment.
Brown v. Mississippi excludes evidence obtained by tortur, and depriving people of their rights under color of state law is at least a civil offense under 42 USC 1983. Police who torture prisoners are, I think, routinely prosecuted under federal criminal statutes, tho crim law isn’t my thang.
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January 27, 2010, 4:19 pmzuch says:
... but if it’s for intelligence purposes.... That’s kind of the gist of this thread.
But if they have no “rights”, the inquiry stops there.
Cheers,
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