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..

For far too long, public debate about terrorism has been dominated by right-wing and left-wing ideologues. In this corner, the Cheneys and their allies. In that corner, the American Civil Liberties Union, gonzo House Democrats and academics, and their allies. In neither corner, common sense.

Typifying the quality of the debate was the ACLU’s wildly overstated full-page ad in The New York Times on March 7 darkly suggesting that President Obama would be subverting "our Constitution and due process" if he abandons his administration’s politically toxic plan to move the prosecution of five accused 9/11 conspirators from a military commission to a federal civilian court. The centerpiece of the ad was a drawing of Obama’s face morphing into that of George W. Bush — who seems to be more hated in ACLU-land than Osama bin Laden.

Meanwhile, hard-right conservatives including Liz Cheney and William Kristol have been running a deeply misguided campaign, including a video emblazoned with "DOJ: Department of Jihad," to smear as disloyal several lawyers now working in the Obama Justice Department. They previously represented Guantanamo detainees or sought due process protections for people who might be innocent.

The best hope for replacing this sterile right-left shout-fest with a bipartisan, commonsense approach to terrorism may be the diligent efforts of Sen. Lindsey Graham, R-S.C., to find common ground with the Obama administration. And the time is ripe for the president to realize that a grand bargain with Graham — including comprehensive legislation on how to handle suspected terrorists, closing the Guantanamo prison camp, and related issues — could help him recover from blunders such as seeking to try the 9/11 defendants in Manhattan.

Graham and Obama have broad areas of agreement. They both want fair and credible criminal trials of as many terrorism suspects as possible. They both want to continue holding as enemy combatants, under the international law of war, those truly dangerous detainees who cannot be prosecuted because the evidence against them is too sensitive for courtrooms or is insufficient to prove crimes beyond a reasonable doubt. They both want Congress to remove the taint of arbitrary executive power from those detentions by adopting clear, consistently applied due process protections. They both want to get potentially lifesaving intelligence from newly captured terrorists.

And they both want to close Guantanamo, because it is such a symbol of lawless detention and torture abroad that allied governments have refused to turn over terrorism suspects unless assured that they will not end up there.

Those are the elements of the bargain that Graham seeks and Obama should pursue. Whether Graham could persuade many other Republicans to support closing Guantanamo is unclear. But it’s worth a try.

So it’s a shame that discussions with officials, including White House Chief of Staff Rahm Emanuel, former White House Counsel Gregory Craig, and Attorney General Eric Holder, have left Graham unable to figure out who is in charge. It’s also a shame to hear a White House spokesman saying that no decision will be made for "weeks" on where to try Khalid Shaikh Mohammed and his four 9/11 co-defendants.

Can’t these people ever decide anything fast?

The first step toward a comprehensive solution — in Graham’s view — would be for Obama to move the 9/11 co-defendants’ case back to a military commission, as key advisers have reportedly been urging him to do.

I have mixed feelings about that. Last fall, I defended Holder’s decision to try the 9/11 defendants in federal court in Manhattan. (See "No Need to Fear a Manhattan Terrorist Trial," NJ, 11/21/09, p. 17.) But unlike Graham — who had long warned the administration that such a move would blow up in Obama’s face — I failed to foresee the unpopularity of that venue and anticipate the enormous security costs.

I still see a civilian trial for the 9/11 defendants somewhere outside Manhattan as the best approach. That would have more legitimacy in the eyes of the world and pose less risk of reversal by the Supreme Court than a military trial, especially one at Guantanamo. I can also understand why administration officials bridle at senators wielding appropriation riders to block civilian trials.

But in the 9/11 case, Graham has powerful political forces on his side. And while justice should not be sacrificed on the altar of politics, a military commission — as currently constituted — is a just alternative to a civilian trial.

I still see a civilian trial for the 9/11 defendants somewhere outside Manhattan as the best approach.

To be sure, the commissions were so plagued by start-up problems as to be something of an embarrassment after Bush created them in 2001. The Supreme Court declared them inadequate in 2006, and they are still disdained by the Left. But Congress greatly improved the commission process in 2006 and again in 2009, thanks in part to Graham’s leadership. The rules are now quite fair to defendants.

So Obama might be well advised to use a military commission for the 9/11 defendants’ case if — and only if — doing so could set the stage for a grand bargain with Graham on the other issues discussed below.

The president should pay no attention to hysterical rants by ideologues such as ACLU Executive Director Anthony Romero that using a military commission "would doom this president’s commitment to civil liberties and the rule of law."

Nor should Obama heed the nutty demands from the Right that all prosecutions of suspected jihadist terrorists must go to military commissions, as Republicans and Sen. Joe Lieberman, ID-Conn., are seeking to require. Both Lieberman and Sen. John McCain, R-Ariz., should know better.

At times, Graham, a former Air Force prosecutor who is a colonel in the Air Force Reserve, has seemed sympathetic to such sweeping proposals. But more recently, he has acknowledged that federal courts have a role to play in trying suspected terrorists, including Umar Farouk Abdulmutallab, the Nigerian who was caught in the act of trying to blow up an airliner on Christmas Day.

Military commission trials, while appropriate in some cases — especially those involving national security secrets — should remain the exception, as they were under Bush, rather than the rule. Many terrorists, and many scores of smaller-fry defendants with ties to terrorism, have been successfully tried and convicted in civilian federal courts.

Apart from their greater perceived legitimacy and the smaller risk that the Supreme Court will reverse any convictions, the federal courts are more flexible than military commissions in the range of possible criminal charges and in other important respects. And many foreign governments might refuse to extradite suspects to face trial in military commissions.

Graham seeks the following key ingredients in comprehensive legislation.

•It would legitimatize the detention without trial of dangerous Guantanamo (and other) detainees who have committed no prosecutable crimes, while at the same time giving courts clear rules for providing due process and periodic reviews to those who claim not to be enemy combatants.

•It would establish rules for deciding the circumstances under which foreign terrorism suspects captured in the future should be detained under the law of war, and interrogated for days or weeks without Miranda warnings, and also for determining whether to prosecute them in civilian courts or military commissions. Holding them as enemy combatants would remain an option for those who cannot be prosecuted at all.

•It would bar release into the United States, if the executive branch objects, of detainees who are determined by judges not to be enemy combatants.

•It would provide for closing Guantanamo as soon as the detainees can safely be moved to a prison in the U.S., presumably the one in Illinois that the administration has sought congressional funding to purchase, so far in vain.

Graham might find it very difficult to round up other Republicans to support closing Guantanamo. The prison has become a darling of the jingoistic Right. But Graham can, and does, remind his colleagues that even Bush, and even Republican presidential nominee McCain, recognized the need to close the prison. Few Republicans disagreed until the issue became a stick with which to beat Obama.

Speaking of sticks with which to beat Obama, while it is fair game for Republicans to demand disclosure of the past representation of Guantanamo detainees by Obama’s Justice Department appointees, the efforts to smear these lawyers as disloyal are shameful.

"Shameful" was the word used to denounce this smear in a recent statement signed by prominent lawyers who served under President George W. Bush, President George H.W. Bush, and President Reagan. The signers include Brad Berenson, John Bellinger, Larry Thompson, Philip Zelikow, Peter Keisler, Matthew Waxman, Kenneth Starr, David Rivkin, Lee Casey, Chuck Rosenberg, and Charles (Cully) Stimson. Benjamin Wittes, a centrist from the Brookings Institution, prepared the statement.

By the way, can anyone remember all the prominent Democrats who have publicly denounced the similarly shameful left-wing campaign to wreck the careers of two Bush Justice Department lawyers? They approved — as did at least 14 colleagues — the legality of waterboarding and other brutal interrogation methods, subject to CIA assurances that they would be carefully limited. For some reason, I can’t think of a single one.

CORRECTION: The original version of this report incorrectly identified the American Civil Liberties Union.

This article appeared in the Saturday, March 13, 2010 edition of National Journal.

The post Time To Depolarize Terror Policy 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..

That is relying too much on unilateral presidential power and judicial improvisation rather than seeking new legislation — as two notable judicial opinions have recently urged — to legitimize and regulate the detention and interrogation of terrorism suspects outside the ordinary criminal process.

The case of the Nigerian who authorities say tried to blow up an airliner over Detroit on Christmas Day has helped expose two reasons why this presidential unilateralism is intolerable.

First, treating terrorism suspects captured in America as ordinary criminal defendants from the moment of arrest unnecessarily rules out aggressive, incommunicado interrogation that might disrupt other plots and thus save lives. New legislation could legitimize questioning such people without lawyers for a limited period (maybe 10 days, or longer in exceptional cases) before launching the criminal process.

Second, Obama’s January 5 suspension of the transfer of Guantanamo Bay prisoners to Yemen — where the Christmas bombing plot was hatched — is the latest sign that he will perpetuate for years the George W. Bush-created regime of long-term detention without trial. Obama acted even though he has recognized this approach to be inconsistent with "our values and our Constitution" unless legitimized by careful congressional, as well as judicial, oversight.

The attacks by Cheney and other conservative critics on the administration’s handling of the case of would-be bomber Umar Farouk Abdulmutallab focus on the decision to treat him as an ordinary criminal defendant, with the usual Miranda rights, lawyers counseling silence, and all the rest.

"If we find Abdulmutallab in a Qaeda training camp in Yemen," writes conservative columnist Charles Krauthammer, "we snuff him out with a Predator — no judge, no jury, no qualms. But if we catch him in the United States in the very act of mass murder, he instantly acquires protection not just from execution by drone but even from interrogation." This, Krauthammer points out, mocks Obama’s declaration that "we will not rest until we find all who were involved."

Liberal columnist Michael Kinsley offers this response: "This anomaly didn’t arise with the Obama administration…. A liberal democracy aspires to punish only the guilty. But war is inherently unfair — it distributes suffering arbitrarily among enemy combatants, civilians, and one’s own soldiers. A line has to be drawn somewhere to determine which of these utterly different standards of government behavior is applied where — and the nation’s border is as good a line as any."

Strong points on both sides. But Krauthammer overlooks the perils of unilateral presidential detention without due process of people arrested in America. Might suspected domestic terrorists be next? Suspected drug dealers? And Kinsley ignores the lives that could be saved by aggressive, incommunicado interrogation of terrorists captured here as well as abroad.

Abdulmutallab was chatty at first. But we may never know what he might have revealed had the government not supplied a lawyer to shut him up. The plea-bargaining process on which the administration fatuously pins its hopes for getting more information takes much too long to reap timely intelligence.

Both columnists overlook the fact that the government should not have to choose between such stark options. It would not face that dilemma if Obama and Congress were to adopt the kind of legislation sketched below.

To be sure, the convictions of Jose Padilla and Ali Saleh Kahlah al-Marri — who spent years in military custody without access to lawyers after being arrested in Chicago and Peoria, Ill., respectively — show that a new law may not be strictly necessary to allow for a period of incommunicado interrogation followed by prosecution, so long as evidence derived from the interrogation is excluded from court.

But even Bush treated as ordinary criminal defendants, with full Miranda rights, the vast majority of those accused of terrorism who were captured in America. "In our constitutional system, prolonged detention should not be the decision of any one man," as Obama rightly said in a major May 21 speech.

The president was also right when he continued: "If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

Obama quietly (and unwisely) abandoned this plan in September, apparently because of the difficulty of getting sensible rules through Congress and protests from human-rights groups that didn’t want to see a system of detention without charge enshrined in legislation.

The aftermath of the Christmas bombing attempt helps show why he should reverse course again and seek new legislation.

The plot’s origination in Yemen — together with other signs of Al Qaeda’s strength there — drove the last nail into the coffin of Obama’s hope of shipping out most of the 91 Yemenis among the 198 men who remain at Guantanamo. Most of these 198 are deemed by the government to be both dangerous and non-prosecutable. Obama has vowed not to free those who are dangerous — as at least two Yemenis and others released by Bush have proved to be.

So Obama has now made his own the Bush policy of long-term detention without trial of many scores of Guantanamo detainees.

This does not vindicate Republican demands that the president abandon his pledge to close Guantanamo. That prison camp — which has in reality been a model facility for several years — nonetheless remains a toxic symbol of law-free detention and brutal interrogation. For Obama to abandon his promise would be a devastating blow to American credibility and hopes of rallying allies to help us fight terrorism.

But emptying Guantanamo will not change the fact that Obama has now irrevocably adopted for the long term a regime of detention without criminal charges or trials. The Illinois prison to which Obama plans to send the detainees is properly called "Gitmo North" because they will enjoy no more due process rights there than they do now.

Not, that is, unless Obama and Congress devise an appropriate legal regime as promised in Obama’s May 21 speech.

Congress could, for example, authorize preventive detention and incommunicado interrogation of suspects such as Abdulmutallab for up to 10 days if, and only if, the attorney general certifies that there are reasonable grounds to believe that the suspect is a member or material supporter of an international terrorist group or conspiracy and that the suspect’s release would endanger public safety.

Such a law could also provide that after the 10 days, or longer in special cases if the government makes a showing of necessity, authorities must choose whether to relegate the suspect to the ordinary criminal process, to a military commission, or to longer-term detention without criminal charges as an enemy prisoner.

Terrorism suspects who are subjected to long-term detention could have a right to timely, trial-like due process hearings at which to dispute claims that they are dangerous, both 10 days after their arrest (except in special cases) and at regular intervals thereafter. The government’s burden of proving dangerousness should become heavier as the time spent behind bars increases.

The federal courts in the District of Columbia have been muddling through by creating — as well as applying — legal rules to govern such detentions since the Supreme Court’s 2008 Boumediene decision gave Guantanamo detainees the right to petition for release.

But two of the judges most steeped in this process have recently complained that the slow-moving courts are ill-suited to devise on a case-by-case, incremental basis the fundamental national defense policies that ought to be set by the political branches.

The "new and frightening" challenges that we face call for Congress to "intervene pursuant to its policy expertise, democratic legitimacy, and oath to uphold and defend the Constitution," Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit wrote in a January 5 concurrence.

And in a December 14 opinion, U.S. District Judge Thomas Hogan, whose colleagues entrusted him with the lead role in consolidating and managing common issues in the many Guantanamo cases, noted that different judges have inevitably adopted "different rules and procedures [and] rules of evidence" and "a difference in substantive law." This confusion, he said, "highlights the need for a national legislative solution with the assistance of the [chief] executive so that these matters are handled promptly and uniformly and fairly for all concerned" — perhaps by a new, expert court.

These judicial pleas also highlight the fact that in dealing with terrorism suspects, the president and Congress have for far too long abdicated to the judiciary their duties — identified in the Preamble to the Constitution — to "provide for the common defense" and to "secure the blessings of liberty to ourselves and our posterity."

This article appeared in the Saturday, January 9, 2010 edition of National Journal.

The post Lessons Of The Christmas Bombing Plot appeared first on Stuart Taylor, Jr..

But is it really a false choice? It’s certainly tempting to think so. The fashionable assumption that coercive interrogation (up to and including torture) never saved a single life makes it easy to resolve what otherwise would be an agonizing moral quandary.

The same assumption makes it even easier for congressional Democrats, human-rights activists, and George W. Bush-hating avengers to call for prosecuting and imprisoning the former president and his entire national security team, including their lawyers. The charge: approving brutal methods — seen by many as illegal torture — that were also blessed, at least implicitly, by Nancy Pelosi, now the House speaker, and other Intelligence Committee members in and after 2002.

But there is a body of evidence suggesting that brutal interrogation methods may indeed have saved lives, perhaps a great many lives — and that renouncing those methods may someday end up costing many, many more.

To be sure, the evidence in the public record is not conclusive. It comes mainly from Bush appointees and Central Intelligence Agency officials with records to defend and axes to grind. There is plenty of countervailing evidence coming from critics who have less access to the classified information that tells much of the story and have their own axes to grind. There are also plausible arguments for renouncing coercive interrogation even if it does save some lives.

But it would be an abdication for the president to proceed on the facile assumption that his no-coercion executive order is cost-free. Instead, he should commission an expert review of what interrogators learned from the high-value detainees both before and after using brutal methods and whether those methods appear to have saved lives. He should also foster a better-informed public debate by declassifying as much of the relevant evidence as possible, as former Vice President Cheney and other Republicans have urged.

The CIA’s post-9/11 records are probably the most instructive body of empirical evidence in existence as to the relative effectiveness of gentle and harsh interrogation methods. The Senate Intelligence Committee is looking into this data. But its review could be skewed by the committee’s own prior role and its current incentives to reach politically palatable conclusions. We need the person responsible for protecting us to direct an unblinking, unbiased review of whether lives were saved.

The review should start by taking seriously the views of the people with the most-detailed knowledge. They say that the coercive interrogation program was highly effective.

Michael Hayden, Bush’s last CIA director, and former Attorney General Michael Mukasey recently wrote, "As late as 2006, fully half of the government’s knowledge about the structure and activities of Al Qaeda came from those interrogations." Former CIA Director George Tenet has said, "I know that this program has saved lives. I know we’ve disrupted plots. I know this program alone is worth more than [what] the FBI, the [CIA], and the National Security Agency put together have been able to tell us." Former National Intelligence Director Mike McConnell has said, "We have people walking around in this country that are alive today because this process happened."

Of course, those four have a stake in defending the actions of themselves and other Bush appointees by magnifying the benefits. But I see little reason to doubt their sincerity, or that of the former senior CIA official who told my colleague Shane Harris anonymously that he was "certain" that the CIA "prevented multiple attacks" thanks to the coercive interrogations. (See "Reading a Torture Memo.")

I see no reason at all to doubt the sincerity of Dennis Blair, Obama’s own national intelligence director, who said in an April 16 memo to his staff that "high value information came from interrogations in which those methods were used and provided a deeper understanding" of Al Qaeda.

Blair later qualified this by adding, "There is no way of knowing whether the same information could have been obtained through other means." But a reasonable person might imagine that it would take more than sweet talk, mind games, and lollipops to get hardened terrorists to sing.

"I like to think I would not have approved those methods in the past," Blair added, "but I do not fault those who made the decisions at that time." His honesty is commendable. In this fevered town, in this bitter time, Blair’s empathy for former officials who went to extremes to protect the country could bring a mob to his door carrying "war criminal" signs.

One of the most specific CIA claims that the brutalizing of detainees averted a planned attack, as described in speeches by then-President Bush and in one of the recently released Justice Department documents, goes like this:

After being subjected to waterboarding and other brutal methods in 2002, Abu Zubaydah explained that he and his "brothers" were permitted by Allah to yield when interrogators pushed them to the limit of their endurance. At that point, he provided information that helped the CIA capture Ramzi Binalshibh. The two captives then gave up details that led to the capture of Khalid Shaikh Mohammed (KSM, in official shorthand), whom Zubaydah had identified as the mastermind of the 9/11 attacks. KSM, in turn, was initially defiant but — after being tormented and waterboarded more than 100 times — gave up information leading to the capture of a terrorist named Zubair, and then to the capture of Hambali, leader of Al Qaeda’s Southeast Asian affiliate Jemaah Islamiyah, and then to his brother "Gun Gun" in Pakistan, whose information led to a cell of 17 Southeast Asian terrorists.

Did tough interrogations prevent terrorists from crashing a hijacked airliner into the tallest building in Los Angeles?

This chain of events, the CIA insists, unraveled the dangerous "Second Wave" plot, planned by KSM and Hambali, that called for the Southeast Asian terrorists to crash a hijacked airliner into the tallest building in Los Angeles, the Library Tower.

There is also evidence cutting against the CIA’s claims. A.B. Krongard, who was the agency’s executive director when the coercive interrogations began, told author Ron Suskind that KSM and other Qaeda captives "went through hell and gave up very, very little." Former FBI agents have claimed that their conventional, non-coercive interrogation got better information out of Zubaydah than the CIA did with its tough stuff.

Many experienced military and FBI interrogators say they’ve never used coercion, contending that it doesn’t work because prisoners will say anything to stop the pain. (But how would they know it doesn’t work, not having tried it? And if you were a terrorist desperate to stop the pain, would you fabricate a story that your interrogators would likely consider suspect — or tell them where to find other terrorists?)

There are also reports of disagreement within the intelligence community as to the seriousness of the Second Wave plot. Maybe it would have fizzled even without coercive interrogations.

But maybe not. As former Bush speechwriter Marc Thiessen has written, if the 9/11 plot had been thwarted, Bush’s critics "would be telling us how it was never really close to execution and [that] men armed with nothing more than box cutters [could never] hijack four airplanes simultaneously and fly them into buildings."

The bottom line about the effectiveness of brutal interrogations, Blair has asserted, is that "these techniques have hurt our image around the world" so much that "the damage they have done to our interests far outweighed whatever benefit they gave us, and they are not essential to our national security."

He may be right (or wrong) about that. But even if he is right, does it make sense not only to ban the brutal Bush-Cheney brand of interrogation but also to lurch to the opposite extreme by ordering the CIA not to "threaten or coerce" any detainee in any way?

No yelling? No restricting a detainee to nutritious but unappetizing cold food until he talks? No threats of long-term incarceration, even though such are used routinely and quite legally by police all over America? Should people suspected of plotting mass death really be treated more punctiliously than people suspected of burglary?

Not in the view of a veteran prosecutor who suggested somewhat ambiguously in 2002 that terrorists are not "entitled to the protection of the Geneva Convention" and that we need to "find out what their future plans might be, where other cells are located."

That was Eric Holder, whose policy now, as Obama’s attorney general, is to give full Geneva Convention protection to terrorists who may be plotting mass murders while considering whether to prosecute Bush appointees for going too far in their desperate zeal to save lives.

This article appeared in the Saturday, April 25, 2009 edition of National Journal.

The post Did Torture Save Lives? appeared first on Stuart Taylor, Jr..

Justice Robert Jackson spelled out this rule in a landmark 1950 decision, Johnson v. Eisentrager: "We are cited to no instance where a court, in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."

That might still be the law had the Bush administration given the hundreds of suspected "enemy combatants" whom it sent to its Guantanamo Bay prison camp in and after 2002 a fair opportunity to show that they were innocents seized and held by mistake, as many apparently were, an almost inevitable feature of this war against terrorists who masquerade as civilians.

But instead, the Bush team seized on its presumed freedom from judicial oversight, spurned the advice of military lawyers, and denied the detainees any semblance of due process, while subjecting some of them to brutal interrogations.

These bad policies have led to muddled law. Understandably offended by President Bush’s approach and the black eye that it was giving America overseas, the Supreme Court deep-sixed Johnson v. Eisentrager and ruled for detainees in three cases culminating in a 5-4 decision last June asserting broad judicial power to hear petitions for release from Guantanamo.

In the process, the justices struck down parts of two recent acts of Congress and assumed unprecedented, open-ended, and potentially disruptive power to oversee the elected branches’ conduct of war. They left it to the U.S. District and Appeals Courts in the District of Columbia to make up detailed rules on an ad hoc basis.

This new regime of judicial second-guessing of military decisions now plagues President Obama as he wrestles with detainee-related problems that would be nightmarishly difficult even if he did not have to answer to the courts.

While dropping the label that Bush applied to most of these men — "enemy combatants" — the Obama Justice Department has adopted almost unchanged Bush’s residual claims of broad executive power to hold or transfer them without judicial interference. And although Obama applauded last June’s Supreme Court decision on the campaign trail, he now finds himself hemmed in by lower court rulings extending it.

On April 2, for example, Judge John Bates ruled that — contrary to Obama’s position — three non-Afghan prisoners who were moved to a U.S. military prison at Bagram Air Base in Afghanistan after being captured in other countries were entitled to judicial review of their petitions for release.

Meanwhile, the Obama Justice Department has embraced Bush’s appeals of two other District Court rulings, both in favor of 17 Chinese Muslims — members of the Uighur ethnic minority — at Guantanamo. One judge ordered the men released into the United States in light of the government’s admissions that they are not dangerous to Americans, might face torture if returned to China, and have not been offered refuge elsewhere. Another decision barred the government from transferring the Uighurs to any other country without 30 days notice to allow their lawyers to seek judicial relief. The government has won both appeals, but lawyers for the Uighurs petitioned the Supreme Court on April 6 to reinstate the order that they be released.

The squadrons of liberal lawyers who have flocked to the suspected terrorists’ defense have also filed more than 200 other habeas petitions and lawsuits, among them claims seeking redress for suspected abuses including torture and a petition to hold Defense Secretary Robert Gates in contempt of court.

The potential for disruptive and even dangerous judicial intrusions into military matters is considerable.

So clogged with detainee cases are the federal courts in D.C. that they may not have time to conduct any ordinary civil trials this spring or summer. So unclear is the law that conflicting rulings are inevitable. And the potential for disruptive and even dangerous judicial intrusions into military matters is considerable.

Will all U.S. prisoners, in every corner of the globe, be entitled to judicial process? Must suspected jihadi terrorists be given their Miranda rights — to remain silent, to consult lawyers, and all that — the minute they are securely in custody? Must they be released, no matter how dangerous they may be, unless the government can prove beyond a reasonable doubt that they have committed crimes? Or unless it can prove that they were fighting for Al Qaeda or the Taliban on a traditional battlefield, to the satisfaction of federal judges thousands of miles from the war zone, under the exacting evidentiary rules used in ordinary criminal cases? Must sensitive intelligence secrets be shared with the detainees or their lawyers? How long can the military hold those who are shown to be enemy fighters?

And might the courts start second-guessing other military decisions, such as the targeting of suspected terrorists in Pakistan for missile attacks? Will lawsuits by widows who say that their innocent husbands were recklessly blown to bits by U.S. missiles follow in the wake of the claims by former detainees who say they were tortured?

One can search the opinions of the Supreme Court in vain for clear guidance on how such questions should be answered. Instead, the justices have provided only "a set of shapeless procedures to be defined by federal courts at some future date," in the words of a June 2008 dissent by Chief Justice John Roberts.

Fortunately, the lower courts have so far handled these cases sensibly, in hundreds of pages of complex opinions. Judge Bates’s April 2 ruling for the three Bagram detainees, for example, strikes a careful balance that could provide Obama with a road map for minimizing judicial intervention by improving the military’s own process for determining who should be detained.

Bates, a Bush appointee, stressed that the three men (two Yemenis and a Tunisian) whose petitions he will review were apprehended in other countries and brought to the Bagram prison over six years ago. He reasoned that, as the Supreme Court held last June in the context of Guantanamo, the executive should not be free to "move detainees physically beyond the reach of the Constitution and detain them indefinitely."

But Judge Bates also emphasized that Bagram, unlike Guantanamo, is in an active theater of war and "under constant threat by suicide bombers and other violent elements." He therefore stopped well short of asserting judicial power to review military detentions of the vast majority of Bagram’s 600 prisoners — those who were captured on Afghan battlefields or are Afghan citizens.

The judge further emphasized that the military’s rudimentary process for hearing claims by Bagram prisoners that they are innocent noncombatants is even "less sophisticated and more error-prone" than the Guantanamo "combatant status review tribunals" that the Supreme Court found to be deficient. The president could "forestall judicial superintendence of the military’s detention policies," Bates suggested, by adopting a more fair and reliable military process.

Another way for Obama to inspire judicial deference, and to avoid a Supreme Court order releasing the Uighurs into the U.S., which could lead in turn to court-ordered release of more-dangerous detainees, would be to free the Uighurs himself, as a matter of simple fairness. This would not only moot the legal case but also increase the likelihood that other nations will take in some of the more than 40 other Guantanamo detainees whom the Pentagon has classified as nondangerous.

For the long run, the best way to avoid undue judicial interference and minimize the possibility of court-ordered release of truly dangerous detainees would be for Obama to seek legislation carefully defining how close a link to Al Qaeda or the Taliban must be proved to justify detaining a suspect; specifying procedural rules flexible enough to admit all reliable evidence while protecting classified information; requiring periodic reviews to identify detainees who may no longer be dangerous; and creating a new national security court with special expertise to review detainees’ appeals.

Meanwhile, the courts should balance their commendable zeal to prevent arbitrary executive detentions with an appreciation of the two dangers of forcing the release of men who may be terrorists. The first is the possibility that they will end up killing our troops or civilians. The second is the risk of sending our troops the unintended message that the safest course is to take no prisoners.

This article appeared in the Saturday, April 11, 2009 edition of National Journal.

The post A Judicial Decision That Plagues Obama appeared first on Stuart Taylor, Jr..

Perhaps the commission, former Defense Secretary William Perry, and other experts who have issued similarly dramatic warnings are crying wolf. Perhaps the likelihood of any terrorist group getting a nuclear bomb is "vanishingly small," as Ohio State political science professor John Mueller has forcefully argued. Or perhaps it’s closer to 30 percent over the next 10 years, as Matthew Bunn of Harvard’s Kennedy School estimated last month in "Securing the Bomb 2008."

Our way of life may well depend on catching nuclear or biological terrorists before they can strike.

Whatever the odds, if terrorists ever smuggle a crude, Hiroshima-sized nuke into, say, Manhattan, the immediate death toll could exceed 500,000. And the ensuing panic could threaten our constitutional system, spur evacuations of major cities, kill international trade, bring the worst economic depression in history, and perhaps usher in a new dark age worldwide.

This prospect puts into perspective the efforts of many human-rights activists, Obama supporters, and journalists to weaken essentially all of the government’s most important tools for disabling terrorists before they can strike.

Wiretaps? These folks would make it far easier for terrorists to escape detection, by greatly narrowing the government’s electronic surveillance powers. Data mining through reams of commercial records in search of terrorist trails? Ditto. Detention of suspected "enemy combatants" who are very dangerous but cannot be criminally convicted? Release them! Interrogation of terrorist leaders? Just say no, even to mild forms of coercion such as angry yelling and threats. The USA PATRIOT Act? Repeal key provisions. FBI guidelines? Ban the feds from focusing more investigative resources on young Arab men from overseas than on African-American grandmothers.

Civil libertarians are rightly outraged by the brutality of some Bush administration interrogation methods; by Bush’s denial of fair hearings to hundreds of suspects at Guantanamo and elsewhere who claim that they are not terrorists; and by his years of secretly and perhaps illegally defying — rather than asking Congress to amend — the badly outdated Foreign Intelligence Surveillance Act.

But the civil libertarians’ outrage does not stop there. Indeed, the prospect of anyone in the U.S. being inappropriately wiretapped, surveilled, or data-mined seems to stir the viscera of many Bush critics more than the prospect of thousands of people being murdered by terrorists. This despite the paucity of evidence that any innocent person anywhere has been seriously harmed in recent decades by governmental abuse of wiretapping, surveillance, or data mining.

On these and similar issues, Obama will have a choice: He can give the Left what it wants and weaken our defenses. Or he can follow the advice of his more prudent advisers, recognize that Congress, the courts, and officials including Attorney General Michael Mukasey have already moved to end the worst Bush administration abuses — and kick the hard Left gently in the teeth. I’m betting that Obama is smart and tough enough to do the latter.

This is not to suggest that the president-elect will or should condone torture, bypass Congress, disregard international law and opinion, or adopt other Bush excesses that Obama and Attorney General-designate Eric Holder have assailed. But Obama does need to claim and use far more muscular powers to avert catastrophic loss of life and protect our security than most human-rights activists (and most Europeans) would allow.

The recommendations in the 112-page report quoted above — issued by the congressionally established Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism — focus mainly on the need for greater efforts to prevent WMD from falling into terrorist hands. Such efforts are critical, but at best cannot eliminate the threat. So our way of life may well depend on catching nuclear or biological terrorists before they can strike.

And the only way to catch them is through aggressive use of wiretaps, data mining, searches, seizures, other forms of surveillance, detention, interrogation, subpoenas, informants, and, sometimes, group-based profiling. Many of these powers and techniques are still tightly restricted by the web of legal restraints and media-driven cultural norms that were developed in sunnier times to protect civil liberties — and would be even more tightly restricted if civil libertarians had their way.

I sketch below how Obama should strike the liberty-security balance in three areas; in future columns I will focus on these and related issues in more detail.

• Wiretapping and data mining: Civil libertarians and most congressional Democrats have complained that the government has too much power to intercept phone calls and e-mails in search of terrorists, under the amendments to the Foreign Intelligence Surveillance Act that were adopted this summer. In fact, the government still has too little power to intercept communications and at the same time too few safeguards against misuse of the information.

FISA, which has always required judicial permission based on "probable cause" to target calls and e-mails between parties inside the U.S. but not calls from or to targets outside the U.S., is badly outdated: It is often impossible to tell where the parties to a cellphone call or an e-mail are. In addition, "the surveillance it authorizes is unusable to discover who is a terrorist, as distinct from eavesdropping on known terrorists — yet the former is the more urgent task," as Judge Richard Posner has written.

Obama, a harsh critic of Bush’s secret, unilateral defiance of FISA’s rules from 2001 through 2005, wisely broke with most liberals by voting in July to relax those rules. He should propose a complete overhaul and simplification of the almost incomprehensibly complicated law. It should be easier to use sophisticated computer data-mining programs to fish through millions of calls and e-mails for signs of possible terrorist activity. At the same time, privacy protections should be improved by tightening the rules to detect (through use of audit trails) and prevent unnecessary dissemination or retention of the intercepted information and to punish severely any misuse of it. An additional privacy protection, suggested by Posner, would be to forbid use of this information for any purpose (including, say, tax fraud prosecutions) other than to protect national security.

• Detainees: Obama should keep his promise to close the Guantanamo prison camp, within a year if possible, and should release as soon as possible and urge Congress to compensate all detainees who are found to be both nondangerous and nonprosecutable. Although Guantanamo is now about as humane as a prison housing some extremely dangerous terrorists could be, its ugly history has made it a worldwide symbol of detention without due process and brutal treatment of detainees, including many mistakenly captured innocents. Obama should also end Bush’s misbegotten system of "military commissions" to put detainees on trial for suspected war crimes, and instead should try as many as possible in ordinary military or civilian courts.

But Obama should spurn the clamor from the Left to simply release any and all of the more than 240 remaining detainees who cannot be criminally convicted. Instead, he should establish a blue-ribbon, bipartisan commission to study all the available evidence on each detainee. Many may turn out to be both extremely dangerous and impossible to convict of crimes, as the military claims, because of strict rules of evidence and other obstacles. Obama should continue to detain that group, probably in U.S. lockups, while working with Congress to establish a new process to give these men every possible opportunity to challenge the factual and legal bases for their continued detention.

• Interrogation: Obama should promptly issue an executive order reinforcing the criminal ban on torturing detainees and imposing a general rule against harsh methods. He should also direct the Justice Department to revoke or revise any as-yet-unrevoked legal opinions taking an unduly narrow view of the anti-torture law. But for reasons discussed in my May 3 column, he should preserve the option of using coercive methods short of torture in especially urgent cases, if the attorney general personally approves. And he should ask himself: What would I want done if the CIA captures another terrorist mastermind such as Khalid Shaikh Mohammed, who is determined not to talk but whose secrets — if extracted — might well save many lives?

If Obama strikes judicious balances between security and liberty, the ACLU and its allies may hysterically accuse him (as they would certainly accuse any Republican president) of trashing the Constitution. But the vast majority of voters understand that the Constitution is not a suicide pact.

Meanwhile, like the prospect of a hanging, the prospect of a terrorist nuclear bomb obliterating downtown Washington — including the Obama family — or Manhattan will concentrate the president-elect’s mind wonderfully.

This article appeared in the Saturday, December 6, 2008 edition of National Journal.

The post Balancing Security and Liberty appeared first on Stuart Taylor, Jr..

When it comes to national security-fighting wars and defending the nation-the courts have long deferred to the president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal precedents suggested) that American courts had

When it comes to national security-fighting wars and defending the nation-the courts have long deferred to the president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal precedents suggested) that American courts had no power to meddle there. Just as the true believers in the Bush White House have done so often, they overreached.

As Charles Fried, solicitor general in the Reagan administration, has reportedly put it, the Bush administration "badly overplayed a winning hand." Bush and his advisers so flouted ordinary, and old, ideas of justice and liberty that they put the Supreme Court in an impossible position: either rubber-stamp denials of due process to detainees who say they were seized by mistake, or step in and create a new set of problems by making rules on a slow, messy, case-by-case basis. In effect, that’s what happened last week when the court ruled in Boumediene v. Bush. If ever there was proof of the adage "hard cases make bad law," this is it.

Historicall…

When it comes to national security-fighting wars and defending the nation-the courts have long deferred to the president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal precedents suggested) that American courts had

When it comes to national security-fighting wars and defending the nation-the courts have long deferred to the president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal precedents suggested) that American courts had no power to meddle there. Just as the true believers in the Bush White House have done so often, they overreached.

As Charles Fried, solicitor general in the Reagan administration, has reportedly put it, the Bush administration "badly overplayed a winning hand." Bush and his advisers so flouted ordinary, and old, ideas of justice and liberty that they put the Supreme Court in an impossible position: either rubber-stamp denials of due process to detainees who say they were seized by mistake, or step in and create a new set of problems by making rules on a slow, messy, case-by-case basis. In effect, that’s what happened last week when the court ruled in Boumediene v. Bush. If ever there was proof of the adage "hard cases make bad law," this is it.

Historically, prisoners of war have no rights in U.S. courts. But even so, they are released when the war ends. The War on Terror has no foreseeable end. What’s more, since the terrorists don’t wear uniforms, it can be hard to discern who the real enemies are. Under the four 1949 Geneva Conventions, prisoners of war have some rights. But after 9/11, hard-liners in the administration decided that terror suspects brought to Guantánamo and various secret prisons around the world lacked any of the protections of the Geneva accords because they were "unlawful combatants."

Under pressure from the courts, the Republican Congress passed laws in 2005 and 2006 giving terror suspects minimal opportunities to challenge their detention in federal court. Detainees were not allowed to have defense lawyers in initial military hearings to determine their status as enemy combatants, or to see or rebut evidence deemed secret by the government.

The potential for unfairness was so great that last week the Supreme Court stepped in and struck down the federal laws, ruling that terror detainees must be given full access to federal courts, under the ancient principle of habeas corpus, which roughly means that government cannot hold you without proving to the courts a legal basis for the detention.

The decision was close, 5-4; writing for the majority, Justice Anthony Kennedy said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." In his dissent, Justice Antonin Scalia pointed an accusatory finger at Kennedy and the justices who agreed with him. The decision will mean the release of dangerous terrorists, he warned, "and almost certainly cause more Americans to be killed." Chief Justice John Roberts, who also dissented, was less alarmist. He predicted that the detainees’ cases would rattle around the courts and that the outcome-in terms of detainees ultimately released-would be about the same as if the justices had upheld the existing process. Scalia, Roberts and the other two conservatives chided the majority for a judicial power grab.

In the wake of the court’s decision, pressure will grow on the Bush administration to close down Guantánamo, which has been a public-relations disaster. The military has already released more than 500 detainees for a variety of reasons; most have gone back to their native countries, though there is some evidence that more than 30 have shown up as combatants in Iraq and Afghanistan and some have killed innocent people. If Guantánamo closes down, it’s unclear what will happen to its 270 detainees.

Whoever wins the presidency in November will be under pressure to make sure that those detainees considered most dangerous (whoever they may be) stay locked up, and it’s not at all clear any U.S. state will want to accept them as inmates. Rather than allow future captives legal rights, the military may choose to detain them on bases far from the United States. The Supreme Court was silent on whether its writ runs to these foreign bases.

Indeed, a host of questions remain to be resolved. What kind of rights should detainees have? Will they have access to secret evidence to be used against them? Should they be able to compel American soldiers or foreign nationals to leave the battlefield to testify against them in person? Can they summon friends and neighbors from foreign lands to testify to their innocence? The only clear outcome is the certainty of enduring confusion: by trying to sidestep the most basic legal protections for detainees at the outset, the Bush administration guaranteed years of legal wrangling.

The post Overplaying Its Hand 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.

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