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.

The need to alleviate this problem — and to parry Republican political attacks in the process — is why Attorney General Eric Holder has announced plans to propose legislation making it easier for the feds to extract as much information as possible from captured terrorism suspects and prosecute them, too.

Civil-libertarian doves attack the incipient Holder proposal, which has not been publicly detailed, as a threat to constitutional freedoms. But any such threat is quite modest compared with the danger that the status quo poses to innocent lives.

Meanwhile, conservative hawks clamor for Holder and President Obama to hand suspected terrorists over to the military as enemy combatants. But they ignore the damage that this approach does to America’s image abroad; the large risk that any convictions by military commissions will crash on appeal; the dangers of subjecting possibly innocent people to decades of detention; and judicial decisions requiring that "enemy combatants" be given lawyers and other rights.

A Miranda primer: The decision was a very broad reading of the Fifth Amendment’s guarantee that "no person … shall be compelled in any criminal case to be a witness against himself." The Court found interrogations of arrested suspects to be inherently coercive. From this premise, it held that any confessions should be deemed "compelled" — and inadmissible in any criminal case — unless the authorities first dispel the coercive atmosphere.

The Court’s prescribed method for doing this was to tell suspects that they have a right to remain silent and to have a lawyer present during any interrogation, and that anything they say can be used against them in court.

But Miranda‘s holding that it is illegal to use a suspect’s un-Mirandized statements to prosecute him did not make it illegal to extract such statements in the first place. The reason that most people have long assumed the opposite is that the primary purpose of interrogating a suspect has almost always been to obtain evidence to prosecute that person. So the ban on using un-Mirandized statements in court has, in practice, been treated as a ban on interrogating a suspect without Miranda warnings.

But what if the arrested suspect — such as the U.S. citizens accused of seeking to blow up an airliner over Detroit on Christmas Day and to set off a car bomb in Times Square on May 1 — may have information that could save lives by thwarting planned attacks or leading authorities to confederates?

In such a case, the primary goal should be to extract as much information as possible as fast as possible to protect public safety. And as long as this information is not used to prosecute the suspect, there is no violation of either the Fifth Amendment self-incrimination clause or Miranda, because there is no compulsion "to be a witness against himself." The Court made this clear in a 2003 case, Chavez v. Martinez.

Other decisions suggest that it would also be legal for federal agents to seek potentially lifesaving information by grilling suspects for hours using such coercive methods as yelling, bright lights, sleep deprivation, and death-penalty threats.

Such coercion would, like Miranda, make the information obtained inadmissible in court. But under the logic of a 1998 decision, County of Sacramento v. Lewis, the coercion itself would violate the Fifth Amendment’s due process clause (not the self-incrimination clause) only if it were so extreme as to "shock the conscience" or "intended to injure in some way unjustifiable by any government interest."

The bottom line is that the justices might well uphold the constitutionality of a few hours or days of un-Mirandized interrogation of a suspect deemed by the government to have information that could save lives. But Miranda, or the presentment rules, or both would probably bar use of some statements from such a suspect to prosecute him.

To be sure, a 1984 decision called New York v. Quarles created a "public safety" exception to Miranda to admit into evidence a gun that police had found after spontaneously asking a suspect who was wearing an empty holster when he was arrested after a chase through a supermarket where he had hidden his weapon.

Officials invoked this public safety exception to avoid immediately Mirandizing Faisal Shahzad, who is accused of bringing the car bomb to Times Square, and Umar Farouk Abdulmutallab, who was caught trying to blow up the airliner over Detroit. But officials proceeded to give Miranda warnings relatively quickly, apparently out of concern that courts might refuse to extend the public safety exception to interrogations lasting for hours or days.

Holder wants Congress to expand the exception to include lengthy interrogation of suspected terrorists who may have actionable intelligence, without Mirandizing them. Some experts predict that the justices will balk. I think that they might defer, as they should, to the elected branches’ judgment that national security calls for some stretching of the public safety exception.

Holder’s second goal is to modify federal laws that bar use of evidence obtained without bringing the suspect before a magistrate within six hours of arrest, and perhaps to also create an exception to a Fourth Amendment precedent that sets a presumptive outer limit of 48 hours after warrantless arrests.

The need to relax these hearing requirements may be even more pressing than the necessity to expand the public safety exception to Miranda.

Many talkative suspects, including Shahzad, just keep talking even after agents quickly recite Miranda warnings, experts say. Suspects are more likely to shut up after a courtroom presentment appearance, which includes Miranda-like warnings, a defense lawyer, and other formalities. The especially chatty Shahzad repeatedly waived his right to a presentment hearing until two weeks after his arrest. But others may not.

The main purpose of presentment hearings is to prove to the courts that suspects arrested without warrants (the usual situation) are not being arbitrarily detained. Holder’s proposed legislation may seek to provide a similar assurance without interrupting the interrogation by bringing the suspect into court. One approach, suggested by Brookings Institution scholar Benjamin Wittes, might be a high-level certification that there is probable cause of a terrorist crime and strong evidence that the suspect may have potentially lifesaving intelligence in a national security emergency.

Such a certification might also overcome a more formidable obstacle to prolonged, uninterrupted interrogation: the 1991 ruling in County of Riverside v. McLaughlin that the Fourth Amendment requires another type of preliminary hearing — to determine whether there is probable cause that the suspect committed a crime — within 48 hours of any warrantless arrest.

I’d be surprised, however, if Holder proposes to delay a terrorism suspect’s first appearance before a judge by more than a week or two, except perhaps in extremely rare circumstances. The actionable-intelligence benefit of any information extracted from a captured terrorist by incommunicado interrogation shrinks, and the civil-liberties cost grows, with each passing day.

By striking a judicious balance in this precarious area, a new law just might help avert attacks so numerous or catastrophic as to drive the government to measures far more drastic and dangerous to liberty than anything we have seen so far.

This will be my last National Journal column. I thank the magazine for publishing these columns since 1998. I will continue as a contributing editor for National Journal and Newsweek, and will write for other publications as well.

This article appeared in the Saturday, May 22, 2010 edition of National Journal.

The post Holder’s Promising Interrogation Plan appeared first on Stuart Taylor, Jr..

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.

The post More Miranda Idiocy appeared first on Stuart Taylor, Jr..

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 other mistake was Holder’s decision to put the 9/11 defendants on trial in Manhattan.

The administration will apparently reverse that decision. But it also needs to put an effective interrogation policy in place before the next would-be bomber is captured. Doing that would be an implicit admission that the administration bungled the Abdulmutallab interrogation. Better to make the admission explicit, and thereby to demonstrate a thus-far-invisible capacity to learn from mistakes.

The recent leaks that the suspect has started talking to interrogators again do not redeem the decision to Mirandize him. His more than a month of silence gave his co-conspirators plenty of time to cover their tracks and to advance a wave of attacks had that been their plan. The administration also claims that Abdulmutallab gave up important information the day he was captured. But that only underscores the foolishness of stopping the interrogation after 50 minutes.

"I have some experience with interrogation, and 50 minutes does not get you what you need," said Sen. John McCain, R-Ariz. He also understands a distinction that appears to escape Holder: Although torture is a moral horror, aggressive interrogation is a moral imperative when lives could be at stake.

This is not to endorse the demands that the president throw Holder over the side. After all, Mirandizing is the law-enforcement routine in this country, a routine that the Bush administration followed in similar cases. It took me a while to realize that Mirandizing was a big mistake in this case. So I empathize with those who made the mistake. I also defended Holder’s plan to hold the 9/11 trial in Manhattan, which seems a very bad idea now that the initial enthusiasm of many New York politicians has morphed into nightmare visions.

And I would still defend his decision to maximize the trial’s legitimacy by prosecuting Mohammed under civilian rather than military law. Too bad that Holder almost immediately made the trial sound like a charade by declaring that "failure is not an option." Then White House press secretary Robert Gibbs went him one better by asserting that Mohammed is "likely to be executed."

But champions of military commissions gloss over the fact that the panels have so far been something of an embarrassment, managing to convict only three men, two of whom have since been freed, in the eight years since Bush announced them.

Obama’s critics are also wrong to imply that suspects can be subjected to prolonged interrogation without Miranda warnings only if they are detained by the military.

But if Obama wants to fend off the soft-on-terrorism label, he will have to think less like a law professor and more like a war leader.

In fairness, Obama has already shown toughness as a war leader — and has enraged his friends on the left — by adopting and sometimes improving upon key Bush policies. These include prolonged detention of some suspected terrorists without trial, using military commissions to prosecute others, "rendition" of still others to allied countries, targeted Predator drone killings of suspected Taliban fighters, wide-ranging wiretaps, the USA PATRIOT Act, and the military buildup in Afghanistan.

But as the Abdulmutallab case shows, the Obama administration has sometimes so fetishized the law enforcement approach to terrorism as to seem almost indifferent to the need to extract information from captured terrorists, whose crimes are acts of war.

Holder’s Justice Department forfeited an opportunity to squeeze what might have been lifesaving information out of the would-be mass murderer without even bothering to notify top counterterrorism officials.

And they did this for no good reason. Neither the 1966 decision in Miranda v. Arizona nor the Fifth Amendment required telling Abdulmutallab that he had a right to remain silent or giving him prompt access to a lawyer.

No law clearly bars grilling a suspect for hours or days without Miranda warnings or lawyers. The only consequence of thus "violating" Miranda, or even of extracting information through mild coercion, is that the information obtained may be inadmissible at trial. Or it may be admissible: There is a recognized "public safety" exception to Miranda that might apply in cases such as Abdulmutallab’s.

Fourth Amendment precedents do require civilian authorities to take arrested suspects before magistrates within two days. That rule, like Miranda, is enforceable only by excluding evidence gathered through improper procedures. But if civilian authorities are averse to un-Mirandized interrogation, or if two days is not enough, the military can do it.

The Obama administration should be forcefully explaining why Predator attacks are consistent with both international and domestic law.

Obama properly rejected the brutal Bush-era interrogation methods that so soiled America’s image. But he overreacted when he barred the CIA from using any methods at all beyond the gentle persuasion allowed by the Army field manual for interrogating prisoners of war. The manual prohibits even "threats" — such as "You’re going to hang if you don’t cooperate with us" — that are both legal and routine in civilian law enforcement. That should be changed. (See this link for more.)

Even if the interrogation rules are not changed, the prolonged grilling that the manual allows is far likelier to save lives than is reflexive adherence to the Miranda routine. Although Obama should seek new legislation, as I’ve previously argued, current law provides adequate authority for prolonged interrogation. (See "Lessons of the Christmas Bombing Plot," NJ, 1/9/10, p. 10.)

But the president has been so eager to show the world and the American Left that he has ended the abuse of prisoners, the swaggering unilateralism, and other Bush excesses that he seems reluctant either to endorse aggressive interrogation or to mount a full-throated defense of the tough-on-terrorism policies that he has adopted. It has long been clear, for example, that Obama would continue to imprison somewhere — if not at Guantanamo — those of the 190 or so current detainees who cannot be proven guilty of crimes but are deemed too dangerous to release.

While quietly adopting in its legal briefs much of the Bush defense of these detentions, however, the Obama administration has never offered a compelling public defense of their legality.

Similarly, while greatly expanding the use of Predator drones to kill suspected Taliban leaders — and often the women, children, and men surrounding them — the administration has never explained publicly why this is a lawful form of national self-defense.

As my National Journal colleague Shane Harris detailed in his January 9 cover story, human-rights activists, U.N. officials, and others are beginning what promises to become a concerted international campaign over the coming decade or more to brand such drone attacks as war crimes — at least when they are conducted far from Afghan battlefields and especially when they are ordered by a Republican president. (See "Are Drone Strikes Murder?" NJ, 1/9/10, p. 21.)

It may take years to materialize, but the coming clamor to prosecute U.S. officials for Predator "war crimes" may well echo the current clamor for "torture" prosecutions.

The Obama administration should be pushing back by forcefully explaining why the Predator attacks are consistent with both international and domestic law.

Such a statement would have special force if it came from Harold Koh, Obama’s top State Department lawyer. A leading international law scholar and former Yale Law School dean, he has been close to the same left-leaning human-rights groups that are laying the groundwork to challenge Predator attacks.

Maybe a congressional committee could help things along by asking Koh, who suggested repeatedly that key Bush policies violated international law, to explain why Obama’s policies do not.

This article appeared in the Saturday, February 6, 2010 edition of National Journal.

The post A Course Correction On Terrorism appeared first on Stuart Taylor, Jr..

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.

The policies that led to this scandal were long ago largely abandoned by the Bush Administration itself. Years before President Obama took power, the former president’s lawyers stopped claiming for Bush the power in effect to nullify the federal law that makes torture a crime. While the administration did not concede that highly coercive methods including waterboarding, an infamous form of simulated drowning, are banned under current law, the CIA had discontinued that method after using it to help break three Al Qaeda figures in 2002 and 2003. And Congress adopted new restrictions on interrogation in the Detainee Treatment Act in 2005 and in the Military Commissions Act of 2006. The military, with sharp prods from Congress and the Supreme Court, got out of the coercive interrogation business entirely in 2006.

But Congress, the media, and other critics have continued to focus so intensely on the sins of the past, particularly in light of President Obama’s release of the prior administration’s formal legal opinions on coercive interrogation, as to neglect serious analysis of what is at this stage a far more important question: What rules should govern future interrogations? In particular, what should our government do the next time it captures known terrorist leaders who likely possess information that could save lives yet who are fiercely determined not to divulge that information? Should the law prohibit CIA interrogators from using any coercion at all, as the Democratic-led Congress voted to do in 2008, and thereby reclaim some international good will by disavowing what may prove an important safeguard against terrorist mass murders? If not, then exactly how much coercion should Congress allow, using what interrogation methods, on what kinds of prisoners, and with what high-level approvals and congressional oversight?

The new administration has so far offered answers to these questions that are at once bold and tentative. They are bold in the sense that they represent a virtually complete repudiation of what remained of the Bush Administration’s policies. The prior administration still permitted the CIA to hold detainees in secret sites away from the prying eyes of the International Committee of the Red Cross and subject them to interrogation tactics not authorized by the military and—in some cases—in violation of, or at least in grave tension with, extant law. The Obama Administration, by contrast, has revoked the CIA’s standing detention authority and required that it comply with military interrogation policies, including an instruction not to “threaten or coerce” detainees. It has required ICRC access for all detainees. Whereas Bush spoke proudly and publicly of the “tough” interrogations he authorized, Obama emphasized in his inaugural address that “we reject as false the choice between our safety and our ideals” and stressed in his first address to Congress that “living our values doesn’t make us weaker, it makes us safer and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.”[i] He also stressed in a press conference this April that he did not regard coercive interrogation as having netted the United States intelligence benefits. “I put an end to these practices,” he said. “I am absolutely convinced that it was the right thing to do, not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.”[ii]

On the other hand, Obama’s new policies are tentative both in the sense that they are non-statutory—accomplished through an executive order, not changes in the law itself—and in the sense that they may prove temporary. While the executive order creates a hard-line anti-coercion default policy for now, it also establishes a task force to study whether the CIA needs more flexibility in interrogation rules for the longer term. And Obama is free secretly to make exceptions to his order if ever a crisis arises in which he, like Bush, may consider coercion necessary.

This essay deals fundamentally with the prospective question of how to amend American interrogation law to balance the need to avoid Bush-like excesses against the need to get intelligence from captured terrorists. It begins by examining some of the deceptions and evasions that frustrate candid discussion of coercive interrogation and torture. It then reviews the post-September 11 evolution of Bush administration policies on interrogation, the experiences of the CIA and the military, and the lessons to be learned from those experiences. It focuses, in particular, on two questions: Has coercive interrogation saved lives that could not have been saved through conventional questioning, either in the post-September 11 context or earlier in history? And is it inevitable that coercive methods, once allowed, will spin out of control? It then turns to a discussion of why, in our judgment, it is essential for Congress and the next president to craft decent, effective, democratically legitimate, internationally respectable interrogation laws for the future; of what those rules should forbid and authorize; and of how to handle exceptionally exigent circumstances that may call for violating the usual rules.

There is no one best legal regime. Each possible approach to these questions has real costs. But America should be able to improve on the legacy of Bush. It should also be able to improve on the approach of human rights groups such as the American Civil Liberties Union, Amnesty International, and Human Rights Watch—and of Congress and the Obama Administration to date. Congress has moved from what-me-worry passivity about coercive practices, to passing in December 2005 a law imposing virtuous-sounding but vague restrictions on interrogators without clear guidance, to voting in 2008 for far more stringent restrictions (a bill which Bush vetoed) without serious discussion of the costs and benefits of any of these approaches. And while the Obama Administration has not embraced such legislation, the executive order the new president signed does effectively the same thing.

We, by contrast, favor a regime characterized by relatively stringent baseline rules but with flexibility built in for the most wrenching, highest-stakes cases. Without a firmer sense than the public record offers of the effectiveness of both mildly- and highly-coercive interrogation techniques, any responsible policy proposal will necessarily be somewhat tentative. And our proposal could shift in a more or less restrictive direction in response to changed understanding of what “works” in interrogation. That said, in our view, it is essential that American interrogation policy be anchored in law. And at least as the record currently stands, that law should have the following contours:

• The military should continue to ban all coercive interrogation, and the CIA should avoid it except in extraordinary circumstances, with vigorous congressional oversight to ensure compliance.
• The CIA should retain the option of using mildly coercive methods such as threats, isolation, and disrupting sleep patterns—for carefully limited periods of time—on high-value prisoners who defy standard interrogation methods.
• Highly coercive interrogation that falls short of torture should be off limits even for the CIA, with an important exception: Congress should reserve to the president and the attorney general the power to authorize the CIA to use highly coercive methods such as sleep deprivation and forced standing on a very small number[iii] of high-value prisoners if and only if the president and attorney general comply with detailed procedures to ensure restraint and accountability.
• Torture should remain a crime in all circumstances, and the definition of torture should be tightened to reflect a more commonsense understanding of morally unacceptable coercion. If an emergency so dire should arise that the president or a subordinate feels compelled to cross (or arguably cross) the line into authorizing illegal torture, his only option should be to violate (or arguably violate) the law and chance the consequences.

[i] Barack Obama, Inaugural Address (Washington, DC, January 20, 2009); Barack Obama, Address to Joint Session of Congress (Washington, DC, February 24, 2009).

[ii] Barack Obama, News Conference by the President (The White House, Washington, DC, April 29, 2009).

[iii] CIA Director Michael Hayden has said that since 2001, the agency used “enhanced techniques” on only about one-third of the fewer than 100 suspected Al Qaeda terrorists of whom it has had custody. U.S. Senate Select Committee on Intelligence, Open Hearing: Current and Projected National Security Threats, 110th Cong., 2nd sess., February 5, 2008. The exact numbers, as the subsequent releases made clear were that 94 detainees passed through the CIA’s detention program, of whom 28 were interrogated with any of the enhanced techniques. See Steven G. Bradbury to John A Rizzo, memorandum, “Re: Application of United States Obligations under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value Al Qaeda Detainees,” 30 May 2005, 29 (hereafter “Convention Against Torture” memo).

The post Looking Forward, Not Backward: Refining American Interrogation Law appeared first on Stuart Taylor, Jr..

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.

The CIA thus had reason to believe that unlocking the secrets in KSM’s head might save dozens or hundreds of lives–and perhaps many, many more, in the unlikely but then-conceivable event that Al Qaeda was preparing a nuclear or biological attack on a major American city.

The CIA also had reason to believe that the only chance of extracting important information from KSM was to break his resistance by using highly coercive, ugly methods amounting to torture (a crime) or near-torture (deemed a crime by many experts). This tough, smart, committed jihadist was not about to betray his cohorts to his hated enemies if interrogators stuck to the kid-glove interrogation rules demanded by human-rights groups and, recently, by most congressional Democrats.

Under such rules, the CIA would have had to abandon any serious effort to save lives that might depend on learning KSM’s secrets. Some philosophers make a strong moral case for such abstinence. But no president who takes seriously his or her responsibility to protect the American people–not a Hillary Rodham Clinton, not a John McCain, and not (I hope) a Barack Obama–would want to be bound by such rules.

Would a wise president have gone as far as the Bush administration authorized the CIA to go–or as far as it went–with KSM? The answer might depend on the likelihood that lives could be saved, which will always be exceedingly difficult for any president and impossible for outsiders to gauge.

To break KSM and two other suspected Qaeda leaders, the administration resorted to waterboarding–simulated drowning–which is deemed by many experts to be torture but was then defended by administration attorneys as legal, if limited in duration. KSM did not easily break, however. So "a variety of tough interrogation tactics were used about 100 times over two weeks," The New York Times reported last October 4. "Agency officials then ordered a halt, fearing the combined assault might have amounted to illegal torture."

Did all this brutality work? Did it save lives?

Bush and others, including Director of National Intelligence Mike McConnell, have so claimed. KSM gave up "information that helped us stop another planned attack on the United States," described "other plots to kill innocent Americans," helped U.S. agents find other terrorist leaders, and led to the breakup of a Qaeda cell that was "developing anthrax for attacks against the United States," Bush said in September 2006.

Of course, Bush has little credibility on such matters. McConnell has more. But FBI officials and even some former CIA officials have disputed CIA claims that the agency has had great success with Qaeda captives by using coercion. So we can’t be entirely confident that brutalizing KSM saved lives, although my guess is that it did.

Human-rights groups and others claim broadly, and glibly, that torture and less-extreme coercion never, or almost never, extract useful information, because prisoners will make up false stories and confessions to stop the pain.

There is little or no empirical evidence bearing on this either way. But common sense suggests that blurting out the truth would be a better bet to stop the pain than concocting fabrications likely to crumble under pressure. And anecdotal evidence too extensive to detail here suggests that coercive methods have sometimes worked. The Israeli government has long said this with confidence. Remarkably, the highest Israeli court said the same thing even as it banned highly coercive methods in 1999, explaining that in a democracy "not all means are acceptable."

The worst thing about the Bush administration’s approach has not been the suffering it has caused KSM and a few other bad men. It has been the inexorable pressure on interrogators to brutalize lesser Qaeda functionaries, foot soldiers, and innocent joes mistakenly seized as terrorists, all the way down the slippery slope to Abu Ghraib and Bagram Air Force Base in Afghanistan, where two small-fry prisoners were reportedly tortured to death. This has shamed our nation and played into our enemies’ hands by staining our image abroad.

The best way to set things right would be for the next president to work with Congress to produce a comprehensive new legal regime that involves a number of changes.

To prevent interrogators from going too far, any order should detail in writing what methods can be used and for how long.

•The specific interrogation rules would no longer be established unilaterally by the executive branch but instead would be democratically legitimated through detailed congressional input reflecting voters’ value judgments.

• Congress should drop the proposal that it passed in February (and that Bush vetoed) to bar even mild interrogation methods that "threaten or coerce" a prisoner in any way–such as angry shouting and the like. It was appropriate to impose such rules on the military, as did the 2005 McCain amendment. But the CIA, which holds the most information-rich prisoners and has the most expert interrogators, needs more latitude, as detailed in my December 15, 2007, column.

• Congress should reaffirm that torture is always a crime and clarify the much-disputed definition. For U.S. law to bless torture under any circumstances would be an invitation for abuse and another disaster for America’s image.

• Highly coercive methods close to the line of torture–including waterboarding, which arguably crosses that line–should also be illegal, but with a narrow exception: Congress should authorize the president to order on a case-by-case basis specified coercive methods short of torture to pressure the rare captive who seems especially likely to have lifesaving information. To prevent interrogators from going too far, any such order should detail in writing what methods can be used and for how long. To provide political accountability, the president should sign such orders, share them with the intelligence committees, and publicly disclose their number.

Such a combination of an absolute ban on torture and a somewhat less absolute ban on other highly coercive methods has been suggested by a number of thinkers, including Philip Heymann, Juliette Kayyem, Benjamin Wittes, and National Journal‘s Jonathan Rauch. Philip Bobbitt suggests a variant to guard against official error and overzealousness in his magisterial new book, Terror and Consent: allowing coercive interrogation only when a special jury of ordinary citizens "can be persuaded that the detainee is in fact a terrorist with valuable information."

None of this is to deny that as a matter of morality, if "the stakes are high enough, torture is permissible," as Judge Richard Posner wrote in The New Republic in 2002. But so rarely (if ever) will it be knowable in advance that a prisoner has information that could avert catastrophe that anyone who resorts to torture should be deemed a lawbreaker whose protection must lie in public opinion, the president’s pardon power, prosecutorial discretion, the common sense of jurors, and the judgment of history.

John McCain, who was famously tortured in North Vietnam and has been a leading opponent of the Bush interrogation regime, seems to get that. Presented in 2005, by Newsweek, with a nuclear-bomb-hidden-in-New-York-City hypothetical, McCain cited Abraham Lincoln’s probably unconstitutional suspension of habeas corpus to save the union. "You do what you have to do," McCain said, "but you take responsibility for it."

This article appeared in the Saturday, May 3, 2008 edition of National Journal.

The post Interrogation: Fixing the Law appeared first on Stuart Taylor, Jr..

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.

The administration (which plans to appeal) says yes, citing the Military Commissions Act of 2006. The Richmond-based U.S. Court of Appeals for the 4th Circuit correctly said no, for reasons well explained in the unanimous portion of Judge Diana Gribbon Motz’s 77-page opinion.

The hard issue is whether suspected Qaeda members who are arrested after legally entering this country—such as al-Marri and (had they been caught) most of the 9/11 hijackers—can be detained for more than a week at all, without the full protections of the criminal process.

Judge Motz (joined by Judge Roger Gregory) makes a plausible (although debatable) legal argument that a never-used, largely forgotten provision of the October 2001 USA PATRIOT Act, as well as judicial precedents and the international law of war, forbids detention of Qaeda suspects in the U.S. without criminal charges for more than seven days, or until they can be deported.

The Motz opinion also provides a chilling explanation of how any decision upholding the administration’s due-process-free detention of al-Marri "would effectively undermine all of the freedoms guaranteed by the Constitution," by putting all foreign visitors at risk of being militarily seized and indefinitely imprisoned on weak or nonexistent evidence, and by going some distance toward exposing all U.S. citizens to the same risk.

On the other hand, Motz’s suggestion that the criminal-justice system can safely deal with such people is unconvincing. In fact, that system is ill-equipped to handle any future waves of Qaeda attacks on American soil.

To be sure, Americans have become a lot less worried about such attacks during the nearly six years since 9/11. And it’s true that the administration has found the criminal process adequate to deal with other Qaeda suspects; al-Marri is the only one arrested in the United States who is now known to be militarily imprisoned.

But how will the Motz ruling look in hindsight if and when Americans are mass-murdered by the thousands again, or if—as seems all too possible—Islamist terrorists get their hands on a nuclear device or lethal germs?

Suppose, for example, that after a series of bombings in Chicago, Washington, and Los Angeles, an anonymous tipster tells the FBI that five Saudi biology students have assembled a large supply of lethal anthrax in two New York City apartments and are planning a massive attack on that city’s subway system. The informant also gives the address of one apartment. With no time to get a warrant, FBI agents break into the apartment, arrest two Saudis, and find lots of anthrax and Qaeda literature.

Under Judge Motz’s logic, both men would have to be released or deported unless criminally charged within a week—but they could not be criminally charged because the warrantless search would clearly have been illegal. And if (as Motz implies) the captured suspects must immediately be given Miranda warnings and lawyers, that would torpedo any hope of using aggressive interrogation to find their co-conspirators before they launch an anthrax attack.

And consider al-Marri himself. He arrived in this country the day before the 9/11 attacks. The government claims to have evidence that he trained under Osama bin Laden in Afghanistan; sent e-mails to Khalid Shaikh Mohammed, the mastermind of the 9/11 attacks; volunteered for a "martyr mission"; received funds from a Qaeda financier; did research on chemical weapons; frequented jihadist Web sites; and was sent to the U.S. to explore computer-hacking methods to disrupt financial institutions.

If al-Marri had been arrested on, say, September 15, 2001, and seen as part of a wave of possibly imminent follow-on attacks, wouldn’t we have wanted the government to hold and interrogate him for at least a couple of weeks without requiring that defense attorneys—whose customary tactic is to zip their clients’ lips—be in the room?

Judge Motz specifically asserts that it is illegal for the government to detain a suspect such as al-Marri indefinitely "in order to interrogate him without the strictures of the criminal process." This was an understandable response to the Bush administration’s incommunicado interrogation of al-Marri in a South Carolina Navy brig for 16 months, with no contact with his wife, children, or lawyers. Al-Marri has plausibly alleged that he was subjected to extreme sensory deprivation and threatened with being sent to Egypt or Saudi Arabia to be tortured, sodomized, and forced to watch his wife being raped.

But to the extent that the Motz opinion would forbid, say, two weeks of incommunicado interrogation—using methods that are aggressive but stop short of torture and near-torture—Congress should explicitly authorize such detention and interrogation, as part of a comprehensive rethinking of how to handle captured terrorism suspects.

The Motz opinion also implies a legal equivalence between Qaeda terrorists and domestic terrorists "like the Unabomber or the perpetrators of the Oklahoma City bombing" in 1995 that killed 168 people. But Al Qaeda, which murdered 3,000 Americans on 9/11 and openly seeks to murder millions more with nuclear and biological weapons, has both the intention and the capability to inflict harm dwarfing the threat from any domestic group, and from most foreign nations as well.

The logic of the Motz ruling that "military detention of al-Marri must cease" applies, she specified, only to suspects who have substantial ties to the United States and are seized within its borders, not to those now detained at Guantanamo and elsewhere overseas. She stressed that the government has never alleged that al-Marri "is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world." This, Motz stressed, made him an ordinary civilian—not an enemy combatant—under Supreme Court case law and the international law of war.

Dissenting Judge Henry Hudson, who usually sits on a U.S. District Court in Virginia, countered that al-Marri "is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States," and thus was a target of Congress’s September 2001 authorization for the president to "use all necessary and appropriate force" against "nations, organizations, and persons" involved in the 9/11 attacks.

The majority and dissenting opinions are both reasonable interpretations of ambiguous laws and precedents. Other judges will also disagree. The best resolution would be for Congress to create a new national security court for such cases and equip it with detailed, congressionally adopted due process rules on all aspects of detention and interrogation. (See my February 24 column.)

Congress ducked these hard issues when it passed the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. As a result, neither law came close to devising a process that is fair in the eyes of world opinion. This helps explain why world opinion is now so hostile to America—and why it may be getting harder for us to get our hands on bad guys in the first place.

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Can anyone straighten out this mess? The best hopes seem to be Sen. John McCain, R-Ariz., and perhaps, Secretary of State Condoleezza Rice. Both understand the cost of losing the moral high ground that America has proudly claimed in past wars. Both seem eager to reclaim it. But they face formidable obstacles.

The biggest is the pigheaded, we-are-the-law approach of President Bush and Vice President Cheney. They have ostentatiously deprecated our international obligations and bypassed Congress, while working "the dark side" (in Cheney’s words) by tacitly encouraging American soldiers to break large numbers of prisoners — including many mistakenly detained innocents — to see what information might spill out.

But the passive acquiescence of Congress (until recently) has been a big part of the problem by allowing administration abuses to fester while critics unwisely agitate to stigmatize all coercive interrogation.

And as usual, the main contribution from Europe — an incubator of terrorist plots to murder Americans (and Europeans) — has been hypocritical moral preening. The latest America-bashing fad centers on the CIA’s not-so-secret "secret prisons" in Eastern Europe. Rice did well to remind Europeans, "We share intelligence that has helped protect European countries from attack, helping save European lives," and to hint that unless the Europeans "work with us to prevent terrorist attacks against their own and other countries," they might find a deaf ear the next time they beg us to rescue them.

Major newspapers in this country and in Europe exude a "we-are-shocked — shocked!" attitude about the idea that any prisoner should be pressured to talk merely because he may have information that could help thwart mass-murder attacks. Meanwhile, some conservative journalists wrongly attack McCain’s sensible proposals to rein in the administration as a virtual ban on any and all coercive interrogation.

Many reporters have been simplistic to the point of inaccuracy in covering the irreducibly complex legal, moral, and practical issues raised by coercive interrogation.

It is not true, for example, that the McCain amendment now moving through Congress as part of the Pentagon’s authorization bill would "ban torture of terror detainees," as The New York Times reported on December 12. Congress made torture a crime in 1994. The McCain amendment would add a ban on "cruel, inhuman, or degrading" treatment (with no criminal penalties). But contrary to the conservative Wall Street Journal editorial page, I doubt that this amendment would "effectively forbid some interrogation methods now being used … by the CIA."

So a primer on the law of coercive interrogation may be in order. Readers uninterested in what Bush has called "the legalisms" may want to skip the next six paragraphs.

The 1949 Geneva Convention relative to the treatment of prisoners of war specifies that POWs "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment" or "any other form of coercion" to force them to talk. But while Bush has been overly dismissive of the Geneva Conventions, he has been right to stress that terrorists who plot to murder civilians while hiding among them are "unlawful combatants" with no right to be treated as legitimate POWs.

Even terrorists are protected, on the other hand, by the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It protects everyone in the world, with no exceptions.

The Convention defines "torture" narrowly, as deliberate infliction of "severe pain or suffering, whether physical or mental." And when the Senate ratified the treaty in 1994, the United States specified that torture included only such "universally condemned" methods as "sustained systematic beating, application of electric currents to sensitive parts of the body, and … hanging positions that cause extreme pain."

The Senate was still more cautious in committing the United States to prevent "cruel, inhuman, or degrading" treatment (CID, in expert parlance) short of torture. It specified in a "reservation" that the U.S. promised only to prevent treatment that would violate constitutional due process rules against undue coercion or abuse of domestic criminal suspects.

Unlike the Constitution’s rule against prosecuting a defendant based on evidence obtained through compelled self-incrimination, the due process rules do allow some coercive interrogation. How much? According to the most relevant Supreme Court precedent, Rochin v. California (1952), the test is whether the methods "shock the conscience," considering all the circumstances, including the importance of the information sought.

The Bush administration has secretly determined (according to news reports) that "waterboarding" (simulated drowning) and some other extremely coercive interrogation methods that the CIA has reportedly used against suspected Qaeda leaders are not "severe" enough to violate the torture ban. The administration has also made a virtual nullity of the CID ban by claiming that it does not protect non-Americans outside the U.S.

So it is that the president and his people reserve the legal right to use all interrogation methods short of torture on all suspected terrorists held outside the U.S. Against the background of U.S. forces’ brutal treatment of thousands of prisoners — many of them innocent of involvement in terrorism — this position is understandably infuriating even to Europeans who are not reflexively anti-American.

Enter John McCain and Condoleezza Rice — not in alliance, but with the common objective of cleaning up the mess that the Bush administration has made.

Rice has become the highest-level Bush confidant to stress with any real conviction the importance of respecting international law and the decent opinions of mankind.

She is stuck with the narrow Justice Department-White House interpretation of the U.N. Convention. And she is in no position to discuss or renounce waterboarding or other CIA interrogation techniques, as her own interrogators in Europe and the media demand.

But Rice did pledge that, "as a matter of U.S. policy," (emphasis mine), all provisions of the U.N. Convention (including CID) are binding on U.S. personnel "wherever they are" in the world. Less prominent officials had said the same. But Rice committed the administration in bold letters.

Rice has also found important allies in her push for more defensible interrogation policies. They include Gordon England, who replaced Paul Wolfowitz as deputy Defense secretary, and Stephen Hadley, who succeeded Rice as Bush’s national security adviser. For this administration, that’s an epidemic of common sense.

But with Cheney and other powerful officials continuing to fight all meaningful restraints on brutal interrogation, McCain and his allies are correct to insist on legislative restrictions. The McCain amendment would make the U.N. Convention’s ban on CID binding on CIA personnel around the world as a matter of law, subject to the 1994 Senate reservation. It would also provide clearer, and stricter, rules for the military by banning interrogation methods not listed in the Army field manual.

Are Rice and McCain overdoing it, as some conservatives warn? Are they making it too difficult for interrogators to get critically important information?

I don’t think so. First, McCain seems to acknowledge that in an extreme (and highly improbable) scenario, such as the capture of a suspect who is known to have a nuclear bomb hidden in New York City, the power of the commander-in-chief would trump any congressional ban. "You do what you have to do," McCain told Newsweek. "But you take responsibility for it."

More important for real-world purposes, the McCain amendment and the 1994 Senate reservation allow for fairly rough interrogation of suspected high-level terrorists. As noted in my November 12 column, the "shock-the-conscience" test codifies the sensible principle that — short of torture — the law permits more-coercive interrogation methods as the importance and urgency of the information sought increases.

Take waterboarding, which ABC News reports has been effective in getting suspected Qaeda leaders to talk. It would surely shock my conscience if used on teenage Taliban foot soldiers. But the reported use of waterboarding to break captured 9/11 mastermind Khalid Shaikh Mohammed — who was as likely as anyone to know of other planned mass-murder attacks — strikes me as ugly but acceptable.

How does it strike you?

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But the FBI did not interrogate Zacarias Moussaoui, who is now alleged to be the "20th hijacker" and who has admitted membership in Al Qaeda. "We were prevented from even attempting to question Moussaoui on the day of the attacks when, in theory, he could have possessed further information about other co-conspirators," complained Coleen Rowley, a lawyer in the FBI’s Minneapolis office, in a little-noticed portion of her much-publicized May 21 letter to FBI Director Robert S. Mueller III.

The reason for this reticence was that Moussaoui had requested a lawyer. To the FBI that meant that any further interrogation would violate the Fifth Amendment rules laid down by the Supreme Court, in cases including Miranda v. Arizona in 1966.

It’s not hard to imagine such rules leading to the loss of countless lives. While interrogating Moussaoui on September 11 might not have yielded any useful information, suppose that he had been part of a team planning a second wave of hijackings later in September and that his resistance could have been cracked. Or suppose that the FBI learns tomorrow, from a wiretap, that another Al Qaeda team is planning a big terrorist attack sometime in August and arrests an occupant of the wiretapped apartment.

We all know the drill: Before asking any questions, FBI agents (and police) must give the suspect the Miranda warnings: "You have a right to remain silent," and so forth. And if the suspect asks for a lawyer, all interrogation must cease until the lawyer arrives (and tells the suspect to keep quiet). This seems perverse when dealing with people suspected of planning mass murder. But it’s the law, isn’t it?

Actually, it’s not the law, even though many judges think it is, along with most lawyers, federal agents, police, and cop-show mavens. To the contrary (in my view), the law allows agents and police to interrogate any suspect without Miranda warnings; to tell the suspect he does not have a right to remain silent; to spurn any request for a lawyer-and in a terrorism investigation, perhaps even to use hours of interrogation, verbal abuse, isolation, blindfolds, polygraph tests, death-penalty threats, and other forms of psychological coercion short of torture or physical brutality.

That’s my opinion, at least, and I’m sticking to it unless and until the Supreme Court says I’m wrong. While this view appears to contradict the language of some precedents, including Miranda, I’m hoping that the justices will confirm it in a case to be heard this fall, Chavez v. Martinez.

The explanation for my apparent heresy is that the Fifth Amendment’s self-incrimination clause says only that no person "shall be compelled in any criminal case to be a witness against himself." This prohibits forcing a defendant to testify at his trial and also making him a witness against himself indirectly by using compelled pretrial statements. It does not prohibit compelling a suspect to talk.

Nor does Miranda, which held only that in determining whether a defendant’s statements (and information derived from them) may be used against him at his trial, courts must treat all interrogations of arrested suspects as inherently coercive unless the warnings were given.

Courts typically ignore this distinction because in almost every litigated case, the issue is whether a criminal defendant’s incriminating statements should be suppressed at trial; there is no need to focus on whether the constitutional problem is the conduct of the interrogation itself, or the use at trial of evidence obtained, or both. And as a matter of verbal shorthand, it’s a lot easier to say, "The police violated Miranda" than to say, "The judge would be violating Miranda if he or she were to admit the defendant’s statements into evidence at his trial."

But the war against terrorism has suddenly increased the importance of this previously academic question. In terrorism investigations, it will often be more important to get potentially life-saving information from a suspect than to obtain incriminating statements for use in court.

And the justices could provide valuable guidance when they decide Chavez v. Martinez. In what lower courts found to be a coercive interrogation, a police officer named Ben Chavez insistently questioned one Oliverio Martinez, without any Miranda warnings, as he struggled for his life in a hospital, suffering from several police-inflicted gunshot wounds. Martinez later brought a civil suit against the police, including Chavez. One argument for dismissing the claim against Chavez was that he had done nothing illegal because the self-incrimination clause could be violated only by the use of evidence at a criminal trial. But a federal appeals court (the 9th Circuit) ruled that "Chavez’s coercive questioning violated Martinez’s … rights" under the self-incrimination clause.

Some Supreme Court precedents suggest the contrary. In 1990, in United States v. Verdugo-Urquidez, the Court said that "a constitutional violation [of the self-incrimination clause] occurs only at trial." It cited an earlier ruling that the government can compel reluctant witnesses to talk if it first guarantees them immunity from prosecution on the basis of their statements or of any evidence derived from their statements.

All of this suggests that the self-incrimination clause "does not forbid the forcible extraction of information but only the use of information so extracted as evidence in a criminal case," as another federal appeals court (the 7th Circuit) ruled in 1992, in Mahoney v. Kesery.

Of course, even when the primary reason for questioning a suspected terrorist is prevention, the government could pay a heavy cost for ignoring Miranda and using coercive interrogation techniques: It could sometimes make it difficult or impossible to prosecute extremely dangerous terrorists.

But terrorism investigators may be able to get their evidence and use it too-if the Court (or Congress) extends a 1984 precedent, New York v. Quarles. In arresting a man with an empty shoulder holster who had been seen entering a grocery store carrying a gun, a policeman demanded to know where the gun was. The suspect pointed to where it was hidden. The justices upheld the use of this incriminating answer at his trial, stating that in such unusual circumstances, "There is a `public safety’ exception" to Miranda.

Quarles is not a perfect template for most terrorism investigations because of the immediate nature of the danger in that case (an accomplice or someone else might have picked up the gun) and the spontaneity of the officer’s question. But when the main purpose of the interrogation is to prevent terrorist attacks, the magnitude of the danger argues for a broader public safety exception.

Would investigators routinely ignore Miranda and engage in coercive interrogation if they were told that doing so would be constitutional? The risk seems modest. Police would still need to comply with Miranda in almost all cases for fear of jeopardizing any prosecution. While that would not be true in terrorism investigations (if Quarles is read broadly), extreme abuses such as beatings and torture would violate another clause of the Fifth Amendment (and of the 14th Amendment as well). That is the due process clause, which has long been construed as barring extreme abuse of suspects.

Should even torture be allowed in rare cases in which many lives could be saved, as Harvard Law School’s Alan Dershowitz and others argue? Surely, they say, torturing a captured terrorist would be morally and legally justified if that were the only hope of finding a ticking nuclear time bomb that could kill 100,000 people.

But because such a case is extremely unlikely ever to occur in the real world, it would be a mistake to enshrine in the law an exception to the absolute rule against torture. It is almost always impossible to be confident in advance that a suspect has potentially life-saving information. And no "torture exception" could be defined narrowly enough to prevent overuse. Would we want our government torturing suspects like Moussaoui because they might possibly know something about planned attacks? If the hope of saving 100,000 lives justifies torture, what about 1,000? Or 100? Or 10? Or one?

That slope is too slippery. And if anything like the ticking-nuclear-time-bomb hypothetical ever does occur, no jury in the world would convict investigators for doing what they had to do.

The post You Do Not Have a Right to Remain Silent appeared first on Stuart Taylor, Jr..

Court of Appeals for the 4th Circuit, in Richmond, Va. In admitting Dickerson’s incriminating statements into evidence, the 4th Circuit held that the Supreme Court’s 1966 decision in Miranda vs. Arizona was not "required by the Constitution"; that Miranda’s "judicially created rules of evidence" were overruled by Congress in a 1968 statute; and that Miranda should henceforth be ignored by police and courts. "No longer will criminals who have voluntarily confessed their crimes be released on mere technicalities," the 4th Circuit declared. Coming at a time when "Miranda warnings" are more familiar to many television viewers than the words of the Constitution itself–and have been used by almost all police and prosecutors since they were rookies–this may seem a bizarre turn of events. But it’s not quite as bizarre as it appears. The stage was set, to some extent, by the Justices themselves. In a succession of decisions narrowing Miranda’s scope, the Court has called its rules "prophylactic" safeguards that are "not themselves rights protected by the Constitution" and "not constitutional in character." Such statements, plus the long-dormant 1968 statute, provided ammunition for a lonely crusade against Miranda, not by police or prosecutors but by a brainy, conservative University of Utah law professor named Paul G.

Cassell, whose weapons are law review articles and friend-of-the-court briefs. Add a heavy dose of conservative judicial activism on the part of the 4th Circuit judges–who reached out to smite Miranda, even though Justice Department prosecutors had not questioned it and the Supreme Court has never overruled it–and what you end up with is a tough case both for Solicitor General Seth P. Waxman and for the Justices. Waxman, who has obtained two postponements of his deadline to answer Dickerson’s petition for review, risks being pounced on by congressional conservatives if he defends Miranda (rather than the 1968 statute) and by liberals if he does not. On the merits, he is torn between the Justice Department’s duty to respect the Court’s precedents and its responsibility to defend acts of Congress.

And this case pits a statute that had been virtually forgotten against the most famous precedent of all time, one that has become at once a liberal icon, a settled police practice, and a potent symbol of the rule of law. The Justices–who have continued to enforce Miranda in federal and state cases alike while eroding its constitutional underpinnings–must decide whether to embrace it, abandon it, or duck. They could duck either by refusing to hear the Dickerson case or (more likely) by sending it back to the lower courts for further hearings, based on the Justice Department’s contention that the agents who questioned Dickerson had, in fact, complied with Miranda. But their ducking could leave the law in a state of confusion. From its inception 33 years ago, the 5-4 Miranda decision was admirable, in its goal of breathing life into the Fifth Amendment privilege barring compelled self-incrimination, and, at the same time, questionable, in the broad sweep of its judge-made rules. Concerned that the Court’s previous efforts to ensure the "voluntariness" of confessions were inadequate to dispel "the inherent compulsions of the interrogation process," Chief Justice Earl Warren wrote for the majority that henceforth, police must immediately warn all suspects in custody that they have the right to remain silent; that anything they say can be used against them; that they have the right to have an attorney present; and that if they cannot afford an attorney, one will be provided for them. But as Justice Byron R. White, a Kennedy Democrat, wrote in dissent, the four Miranda rules were "neither compelled nor even strongly suggested by the language of the Fifth Amendment [and were] at odds with American and English legal history." White also predicted that "in some unknown number of cases the Court’s rule will return a killer, a rapist, or other criminal to the streets." Conservatives in Congress, infuriated by Miranda, responded in 1968 by attaching to an omnibus crime bill a provision purporting to overrule the decision and reinstate the same "voluntariness" rule that the Court had rejected as inadequate. But the Justice Department, under seven consecutive Presidents, has consistently refused to raise or defend the 1968 statute in court (except in a few lower-court cases). Its implicit assumption has been that the Court would strike down any such frontal attack on its own power to vindicate constitutional rights. This assumption has lost some of its force as subsequent decisions have chipped away at Miranda. And in a lone concurrence in 1994, Justice Antonin Scalia complained of the Justice Department’s "repeated refusal to invoke" the statute, saying that this "may have produced…the acquittal and nonprosecution of many dangerous felons." Meanwhile, Cassell, who once clerked for Scalia, has peppered courts with friend-of-the-court briefs arguing that Miranda was overruled by the 1968 statute and should henceforth be rejected. The 4th Circuit was his first taker, in a 2-1 panel decision on Feb. 8 written by Judge Karen J. Williams. (It was later supported by an 8-5 vote of the full 4th Circuit.) Cassell has also argued in several law review articles that Miranda has, in fact, handcuffed the police, as critics such as White warned from the start, by returning thousands of criminals to the streets. Based on complex statistical analyses, he has claimed that Miranda produced dramatic drops in both the number of confessions and the percentage of crimes solved. Liberal scholars have attacked Cassell’s analysis, arguing that the statistics he used are both unreliable and skewed by trends unrelated to Miranda. They also note that a high percentage of defendants waive their Miranda rights; that Miranda’s impact has been reduced by subsequent decisions; and that even Cassell’s own analysis found no evidence that Miranda has helped many (if any) of the most dangerous criminals–murderers and rapists–escape punishment. The bottom line, in my view, is that Cassell has made a plausible–but hardly overwhelming–case that some more-than-trivial percentage of criminals go free because of Miranda. That’s a serious cost to society. But all civil liberties carry serious costs. Criminals go free every day because the Fifth Amendment bars police from beating confessions out of them, and bars judges from forcing them to testify at their trials. Other criminals go free because the Fourth Amendment bars police from searching everyone they might like to search.

Still others go free because we don’t spend as much as we could to hire more police officers. It seems likely–even to some people who doubt (as I do) that Miranda was right when it came down–that the benefits of keeping it outweigh the costs. Protecting suspects from the possibility of third-degree interrogation techniques is not the only benefit. Another, in the view of many police chiefs and officers, is that Miranda makes their jobs easier by spelling out exactly what they can and cannot do, rather than exposing them to subjective judicial second-guessing on a case-by-case basis. Most important, perhaps, is the benefit that we all derive from stability in the law–from the sense that the Supreme Court will not lightly cast aside major constitutional rulings. That stability would be disturbed by any decision at this late date to tear Miranda out of the constitutional firmament. This is not to suggest that if Congress (or state legislatures) were at some point to see Miranda as a big problem–notwithstanding the paucity of complaints by law enforcement officials in recent years–they would be powerless to do anything about it. Warren wrote in Miranda itself that "Congress and the states are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above." Some scholars have suggested that a carefully crafted law that provided for videotaping interrogations, or for questioning suspects in front of judicial magistrates, might meet that test. But the 1968 statute does not. That’s why the Justices should make it clear that Miranda remains the law of the land.

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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.

Why not?

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.

Why not?

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.

The deeper question, debated for more than a century, but never laid to rest, is whether all this makes much sense, or whether the Fifth Amendment privilege- at least as stretched by the Court-serves primarily to shield guilty defendants, with social costs that far outweigh any benefits.

The breadth of the Fifth Amendment’s shield for the guilty has long baffled many ordinary citizens and has troubled an especially illustrious list of scholars and judges. Among the many luminaries who have criticized either the privilege itself, or the Court’s gloss on it, as a kind of misbegotten growth on an otherwise sound Bill of Rights, have been English philosopher Jeremy Bentham. Legal scholar John Henry Wigmore, Harvard Law School Dean Roscoe Pound, and Judge Henry Friendly of the U.S. Court of Appeals for the 2nd Circuit, who wrote in 1968 that the Court "has stretched the privilege not only beyond its language and history but any justification in policy."

DRAMATIC REINTERPRETATION

Now comes Professor Akhil Amar of Yale Law School in an impressive 72-page article (co-written by Reneé Lettow, a student), entitled "Fifth Amendment First Principles: The Self-Incrimination Clause," in the just-published March issue of the Michigan Law Review.

Amar makes a provocative, well-crafted argument for a dramatic reinterpretation of the privilege that would (among other things) allow police or prosecutors to interrogate arrested suspects, in judicially supervised pretrial depositions, on pain of contempt for refusing to answer and of perjury for failing to tell the truth.

While the government could not use the defendant’s testimony against him at trial-which would flout the clear original intent of the Fifth Amendment-it could use any physical evidence, names of witnesses, or other leads or reliable evidence derived from such interrogations.

Amar grounds his proposals in a conception of the privilege as evincing a core purpose of protecting innocent defendants from being convicted based on a species of unreliable evidence: testimony compelled from an unpracticed defendant-witness who can be manipulated by a clever prosecutor into looking like a guilty liar to the jury. In Amar’s view, the privilege should protect the guilty only as a necessary incident of the need to protect the innocent defendant from being compelled literally "to be a witness against himself at trial.

If reliability is the touchstone, Amar reasons, the privilege is offended neither by the compulsion of incriminating testimony before trial (so long as it is not introduced at trial) nor by the use at trial of any reliable evidence (such as the location of a murder weapon) that may be derived from the compelled testimony.

Amar has already drawn a ripsnorting, 81-page rebuttal (in the same issue of the law review) from Professor Yale Kamisar of the University of Michigan Law School, long a leading scholarly advocate of using broad Fifth Amendment rules to deter abusive police interrogations. Kamisar is persuasive (and exhaustive) in arguing that Amar’s proposals would amount to a far more radical demolition of more than a century of Supreme Court precedent than Amar acknowledges. Kamisar also warns plausibly that Amar’s approach could encourage third-degree interrogation techniques by allowing police to use even evidence derived from confessions coerced behind closed doors without judicial supervision.

Still, Amar (like Judge Friendly and others) makes a compelling case that Fifth Amendment doctrine is bloated with unwarranted extensions and riddled with internal inconsistencies and incongruities. He (like they) also torpedoes the flaccid policy rationales-"ringing but vacuous pronouncement[s]" and "cacophonous clichés," in Friendly’s words-that have been offered by the Supreme Court and others over the years for a privilege that so generously shields the guilty, not only from police misconduct but also from being put to the slightest disadvantage for refusing to respond even to the most civilized and carefully monitored kinds of pretrial questioning.

Take the Warren Court’s assertion in Murphy v. Waterfront Commission (1964) that the privilege reflects "our unwillingness to subject those suspected of a crime to the cruel trilemma of self-accusation, perjury, or contempt."

But there is no "cruel trilemma" for the innocent. They can simply tell the truth. As Mickey Kaus (now of The New Republic) has written, the Court was in effect saying that it would be too cruel for "a guilty man asked to testify [to be] placed between a rock and a hard place. So he is. But isn’t that exactly where we want him? … Why should the Constitution reach down and extricate him from the trap he has gotten himself into?"

The Court’s further rationale in Murphy that an expansive Fifth Amendment privilege is warranted by "our preference for an accusatorial rather than an inquisitorial system of criminal justice." in which prosecutors and police must prove their cases without forcing defendants to assist in their own convictions, smacks of the "sporting theory" of justice as a game played for its own sake, rather than a truth-seeking process. It is also belied by the broad powers of prosecutors to compel defendants to provide such physical evidence as their fingerprints, voice prints, and blood.

Justices and commentators have also argued that an underlying purpose of the privilege is to protect the "private enclave" of each individual. Bui this" argument cannot be reconciled with the established doctrines that testimony about intensely private matters can be compelled by the government from witnesses who have done nothing wrong or who have been granted immunity, and by civil litigants in (for example) divorce cases.

Then there is the notion that we need a broad Fifth Amendment privilege as a shield for dissidents. The privilege still inspires affection among many liberals because of its undoubted value in shielding alleged Communists and others accused of ideological heresy by red-hunting congressional committees during the other witch McCarthy era, and during other witch hunts going back to the Star Chamber. But notwithstanding this pedigree, the best protection against witch hunts in today’s world lies in the First Amendment, rather than in a bloated privilege that serves primarily to shield violent criminals and white collar crooks.

The most compelling argument for such Warren Court expansions of the privilege as Miranda v. Arizona (1966) is the need to deter police from using brutality or abusive "third-degree" interrogations to obtain coerced confessions-which are inherently unreliable in themselves and are often embroidered in police reports and testimony.

But while some advocates of expansive Fifth Amendment rules tend to equate all forms of questioning with cops using rubber hoses, Amar points out that in fact, "[b]y effectively preventing formal, civilized depositions-by creating an overly…

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