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 return to this subject because the rationalizations by Attorney General Eric Holder and other administration apologists have been so breathtakingly bereft of seriousness about the need for aggressive interrogation to protect our country.
Abdulmutallab might have been the first of a dozen Christmas Day bombers seeking to perfect the Bojinka plot, for all Holder and his colleagues knew at the time. It was sheer luck that this was not the case.
And the decision to read Abdulmutallab his rights, bring him a lawyer, and stop asking questions may yet get Americans murdered by his co-conspirators in Yemen — who might have been located and captured or killed but for his five weeks of post-Miranda silence.
In any event, the important question for policy makers now is not how Mirandizing Abdulmutallab worked out; it is what the cost of Mirandizing such terrorist suspects in the future might be.
This is not to suggest that it is certain or even probable that aggressive interrogation in the hours and days after Abdulmutallab’s attempt would have extracted valuable intelligence. He might well have been defiant or silent in any event. So deciding whether to read Miranda warnings to such suspects might be a close call if either the law or "the fundamental principles on which our nation was founded," in Holder’s words, argued for doing so.
But that’s not the case. The fundamental principle underlying Miranda is the Fifth Amendment right of every person not to be "compelled in any criminal case to be a witness against himself." And "all the Fifth Amendment forbids is the introduction of coerced statements at trial," as the late, liberal Justice Thurgood Marshall wrote in a 1984 opinion, joined by Justices William Brennan and John Paul Stevens.
In other words, neither the Fifth Amendment nor Miranda forbids aggressive interrogation to protect public safety without Miranda warnings.
The Holder-Obama policy of promptly reading terrorist suspects their Miranda rights comes close to guaranteeing that no timely intelligence will ever be extracted from any of them. Abdulmutallab’s supposed disclosures starting five weeks after his Miranda warnings were far from timely.
Let’s review some of the official rationalizations for this policy.
• Especially rich was the account to reporters by an anonymous White House background briefer of a January 6 National Security Council meeting at which Obama, Holder, and other top officials reaffirmed that Abdulmutallab should not be interrogated as an enemy combatant. The discussion included an undisclosed participant’s comment that "putting him in front of somebody with a military uniform would have made him even more opposed to any type of cooperation."
Wow. Did it not occur to any of our protectors that you don’t need a military uniform to interrogate a suspect without first Mirandizing him? That military interrogators don’t have to wear uniforms? That holding a suspect as an enemy combatant would neither require military custody nor preclude subsequent prosecution in a civilian court?
• The most plausible defense of the handling of Abdulmutallab is that the Bush administration had done the same with would-be shoe bomber Richard Reid in December 2001, and it had no clear plan to handle the next Reid any differently.
That mitigates the Obama team’s mishandling of Abdulmutallab — but not its decision to mishandle future cases in the same way. It’s also pretty strange to hear the Obama administration saying, in effect, "We’re OK because we’re doing what the Bushies did."
What would the Bushies have done had Abdulmutallab appeared on their watch? Former Attorney General Michael Mukasey told me in an interview that the CIA and national intelligence directors "and ultimately the president would have been in on the decision in addition to me"; and that "I like to think the default setting would have been toward gathering intelligence rather than worrying about whether a man who did his crime in front of 285 witnesses could be convicted without using his confession."
• Holder claimed in a February 3 letter to Senate Republicans that it is "far from clear" that the government has the legal authority to hold a suspected enemy combatant captured in the United States without access to an attorney. He said that Mukasey, in his previous role as a U.S. District judge, had ruled that a detainee named Jose Padilla "must be allowed to meet with his lawyer," and that a federal Appeals Court in New York had later found the military detention of Padilla to be unlawful.
Holder misleadingly omitted critical facts. First, Padilla was a U.S. citizen. Second, Mukasey’s ruling did not involve Padilla’s initial interrogation but rather his right — after more than eight months in military detention — to have a lawyer’s help in petitioning for release. Third, the Supreme Court reversed the Appeals Court ruling for Padilla on jurisdictional grounds in 2004. Fourth, the justices held the same day, in the case of Yaser Esam Hamdi, that a U.S. citizen captured abroad and linked to "forces hostile to the United States" can be held in this country without charges as an enemy combatant. Fifth, another federal Appeals Court, in Richmond, Va., later upheld the military detention of Padilla in the U.S. and also (as Holder noted in passing) of Ali Saleh Kahlah al-Marri, a suspected Qaeda agent from Qatar who was arrested in Peoria, Ill.
The votes in these cases were close, and it’s fair to say that the law on long-term military detention of suspected enemy combatants captured in the United States is not settled. But the weight of legal precedent is that the Obama administration had ample authority to subject Abdulmutallab to days or even weeks of incommunicado interrogation. It chose to Mirandize him instead.
• Holder argued in the same letter that promptly giving a terrorist suspect a lawyer would not "compromise our ability to obtain information needed to detect and prevent future attacks." It is difficult to reconcile that opinion with his statement in a 2002 CNN interview that it would be "hard to interrogate" John Walker Lindh, the so-called American Taliban, "now that he has a lawyer and now that he is here in the United States."
Holder’s 2002 statement also resonates with a subsequent boast by Michael Ratner, a lawyer active in coordinating representation of Guantanamo detainees, that the government "can’t run an interrogation … with [defense] attorneys present."
• The Holder Justice Department made a powerful argument for prolonged incommunicado interrogation in a December 18 brief filed by Preet Bharara, the U.S. attorney in Manhattan. Ahmed Ghailani, charged in Al Qaeda’s 1998 bombings of U.S. embassies in Kenya and Tanzania, had claimed that his detention at a secret CIA interrogation site had violated his speedy-trial rights. Responded Bharara: "The interest in national security plainly justified holding [him] as an enemy combatant [and] interrogating him" without Miranda warnings or lawyers.
Ghailani’s disclosures "would have been substantially less useful to the United States," Bharara added, had the government made it obvious that he was cooperating.
What does that say of the administration’s public boasts last week that Abdulmutallab was cooperating?
This is not to deny that bypassing Miranda would leave unresolved how much evidence about a suspect should be required to justify incommunicado detention and interrogation; how harshly he should be interrogated; and for how long.
Those are hard questions. The easy one is whether Obama’s policy of Mirandizing terrorist suspects can be squared with Obama’s exhortation in his State of the Union address: "Let’s try common sense." It cannot be.
This article appeared in the Saturday, February 13, 2010 edition of National Journal.