In 1966, the Supreme Court instructed police, in Miranda v. Arizona, to tell arrested suspects that "you have the right to remain silent." But, in fact, you don’t.
Rather, police — or more to the point of current debate, federal agents interrogating suspected terrorists — can skip the famous Miranda warnings and even use some degree of coercion to extract a confession, all quite legally. Indeed, you can even be jailed for refusing to answer questions after being granted immunity from any prosecution.
The problem for law enforcement — especially in the terrorism context — is that any statements obtained from an arrested suspect without Miranda warnings, or by directly coercing an involuntary confession, ordinarily cannot be used against the person in a criminal case.
A less familiar but perhaps more important problem is that current federal law also bars the use of most statements made more than six hours after a suspect’s arrest without first taking him to a magistrate judge for a "presentment" hearing. In a terrorism incident, such an interruption could derail a promising effort to get information about co-conspirators and planned attacks.
The combined effect is to force officials to make an unnecessarily difficult choice: They can put terrorism suspects through the kind of prolonged, uninterrupted interrogation that is their best hope of preventing future attacks. Or they can maximize the chance of a successful prosecution. But they can’t count on doing both, unless they get lucky.
This dilemma creates unhealthy incentives either to shun aggressive interrogation — which the Obama administration has sometimes seemed all too ready to do — or to subject suspects to the indefinite military detention, interrogation, and trial that the Bush administration favored.
Suppose that your child is being held in a secret location by kidnappers who threaten to kill her within two hours unless they’re paid a ransom of $100,000 that you can’t raise. Suppose further that the FBI has just captured one of the kidnappers.
Would you want the agents to say this? "You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning."
And would you want them to stop asking questions the second the suspect asks for a lawyer?
Neither the Fifth Amendment nor Miranda forbids aggressive interrogation to protect public safety.
Now imagine a more realistic scenario, along the lines of Al Qaeda’s aborted 1995 "Bojinka" plot: After learning that Qaeda terrorists with virtually undetectable bombs are planning to blow up 12 airliners carrying almost 4,000 passengers very soon, the FBI captures one of them. Would you want him Mirandized?
The questions answer themselves.
Reasonable people disagree about how much coercion interrogators should use to extract potentially lifesaving information from terrorists. (None at all, President Obama unwisely ordered soon after taking office.)
But no reasonable person could doubt that starting out with "you have the right to remain silent" is not the way to save lives.
Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.
I have instructed my subordinates that suspected Al Qaeda terrorists captured anywhere in the world should be interrogated extensively — with safeguards against abuse — before any Miranda warnings or access to lawyers. This approach is legal and it may save lives. Although the specific evidence obtained might in some cases be inadmissible in court, the suspects will be prosecuted based on other evidence once interrogation is completed.
This is a major departure from the established policy of all past administrations, of the FBI, and until now of my administration. Nobody should fault those who diligently followed established policy in handling the suspect in the Christmas Day airplane bombing attempt. But I have decided that my new policy is more likely to obtain critical intelligence from captured terrorists.
President Obama should say something like this, something fairly dramatic, to counter the surging Republican campaign to brand him soft on terrorism.
He already faces a bipartisan push to block civilian trials of Khalid Shaikh Mohammed and other 9/11 conspirators and to kill his plan to close the Guantanamo Bay prison camp. Whether he wins or loses those battles, he risks permanent political damage unless he dispels the soft-on-terrorism charge.
The charge is unfair. But it is gaining traction because of two glaring mistakes.
One was the decision by Attorney General Eric Holder’s Justice Department to advise Umar Farouk Abdulmutallab after only 50 minutes of interrogation that he had a right to stop talking — which he did. This blunder was compounded by Homeland Security Secretary Janet Napolitano’s fantasy that "the system worked," by Obama’s fatuous assertion that Abdulmutallab was "an isolated extremist," and by Holder’s unconvincing defense of the initial mistake in a five-page letter to Senate Republican Leader Mitch McConnell on February 3.
The worldwide scandal spurred by the abuse of prisoners in Abu Ghraib, Guantánamo, Afghanistan and secret CIA prisons during the Bush Administration has been a stain on America’s honor and a catastrophe for our national image. Understandably eager to save innocent lives by breaking the resistance of a few Al Qaeda leaders, Bush and his aides went way overboard. Instead of crafting special rules to allow for exceptionally tough interrogations of those few leaders and maintaining strict limits to ensure that those interrogations stopped short of torture, the Bush team chose to gut the laws, rules and customs restraining coercive interrogations. They did this with a public bravado and an ostentatious disregard for international law that both scandalized world opinion and sent dangerous signals down through the ranks. These signals contributed to lawlessness and to confusion about what the rules were supposed to be. They helped open the floodgates both to CIA excesses widely seen as torture and to brutal treatment by the military of hundreds of small-fry and mistakenly-arrested innocents in Iraq and Afghanistan and of an unknown number of prisoners at Guantánamo. All this inspired widespread international and domestic revulsion and gravely undermined America’s political and moral standing and ability to work with some allied governments.
Amid the new round of headlines about the Bush administration’s use of extremely harsh methods–some say torture–to interrogate suspected terrorists, the most important question is getting the least attention.
That question is how we should revise our laws to govern future interrogations, especially those of newly captured terrorism suspects who seem especially likely to have potentially lifesaving information.
Debate currently focuses on whether evidence obtained through highly coercive methods should be used in military commission trials of those accused of being Qaeda leaders,
and whether President Bush and his top national security aides should be investigated for war crimes for approving those methods.
My answer is no to both questions. But looking forward, the key to a decent, effective, democratically legitimate interrogation policy is for policy makers and citizens to think hard about an agonizing choice.
What would we want done the next time the CIA catches someone such as Khalid Shaikh Mohammed (KSM, in official shorthand)? There is no good answer. But we should be able to improve on the disastrous legacy of Bush, whose presidency brought us the horrors of Abu Ghraib and the "renditions" of at least two wrongly suspected men to be tortured in Syria and Afghanistan.
The March 2003 capture of KSM in Pakistan was as close to the hypothetical "ticking bomb" situation as we have come in the real world. Although the CIA did not know of any imminent threat, it did know that KSM was the architect of the 9/11 attacks and was Al Qaeda’s chief of operations. As such, he probably knew more than anyone else alive about any planned attacks and where to find other key terrorists.
A Federal Appeals Court’s unanimous rejection on June 11 of President Bush’s effort to deny judicial review and due process to a legal alien who has been militarily incarcerated for four years—because Bush says he is a Qaeda agent—was a ringing and welcome defense of our constitutional freedoms.
But I worry that two of the three judges may have gone too far, or exposed a gap in our laws that Congress needs to fill, in their additional, broader holding. It was that Ali Saleh Kahlah al-Marri and other suspected Qaeda terrorists arrested in the United States cannot be detained at all, no matter how dangerous, unless the government brings criminal charges against them within a week of arrest or is unable to deport them.
Whether or not correct as a matter of law, this majority opinion points, in my view, to the need for explicit congressional authorization of prolonged (although not indefinite) detention and aggressive (although not abusive) interrogation of suspected Qaeda agents who cannot be criminally prosecuted. Congress should also require muscular due process safeguards and exacting judicial review, which the Bush administration has furiously opposed, to prevent erroneous detentions of innocent people.
More broadly, the chasm between the views of the president and these two judges on how such cases should be handled illustrates yet again the need for Congress to end its shameful abdication of its duty to rethink the war-on-terrorism’s detention and interrogation policy from the ground up.
The easy issue in the al-Marri case is whether foreigners living legally in this country who are suspected of being Qaeda sleeper agents—such as al-Marri, a Qatari graduate student at Bradley University who lived in Peoria, Ill., with his wife and five children—can be subjected to long-term military detention based solely on the president’s say-so, with no right to due process or judicial review.
There is more than enough blame to go around for the disastrous damage done to our international standing and national security by the uproar over the use of coercive interrogation methods — all of them "torture," in the parlance of many critics — to squeeze potentially life-saving information out of suspected terrorists.
Last September 11, after the 19 hijackers had completed their ghastly work, the government had in its custody a man suspected by FBI agents of being part of the plot-a man they thought might have information about other co-conspirators or planned attacks. He had been locked up since mid-August, technically for overstaying his visa, based on a tip about his strange behavior at a Minnesota flight school. Even before September 11, agents had strongly suspected that he was a dangerous Islamic militant plotting airline terrorism.
Quietly ticking away in the files of the Supreme Court is a time bomb that seems likely to explode into controversy in the next few weeks–and rock Congress, the Clinton Administration, and the Court itself. The time bomb is Charles T. Dickerson vs. U.S., a petition from a bank-robbery defendant for review of an extraordinary ruling by the U.S.
When Timothy McVeigh was charged in April with the Oklahoma City bombing, something very revealing happened. McVeigh said nothing. He did not say, "I had nothing to do with it." He did not say, "You’ve got the wrong guy." In fact, he has never, to this date, said anything like that.
McVeigh’s nondenial is highly probative-indeed, it is what most convinces me of his probable guilt. But the jury at his trial will never be told about it.
And if McVeigh fails to take the stand at trial to assert his innocence or explain where he was and what he was doing at the time of the murders with which he is charged, the prosecutor will be barred from commenting on his silence, and the jury will be instructed that no inference of guilt can be drawn.
The answer, of course, is the Fifth Amendment provision that "[n]o person … shall be compelled in any criminal case to be a witness against himself," as it has been construed by the Supreme Court.
The constitutional language clearly gives every criminal defendant the right to remain silent at trial. The Warren Court and its predecessors, going back to 1886, extended the privilege to (among other things) pretrial proceedings and police station interrogations; stretched the meaning of the word "compelled" in the Fifth Amendment to require the familiar Miranda warnings and to bar prosecutors from making reference either to a defendant’s silence after arrest or to his or her failure to testify at trial; and mandated exclusion from evidence both of "compelled" pretrial statements and of any physical or other evidence (such as the location of a murder weapon or the names of witnesses) derived from such statements.