Obama Administration Mirandizes Terrorists (Just Like Bush Administration Did)
Conservatives are hyperventilating tonight over a report by Stephen Hayes of the Weekly Standard that the FBI has begun giving Miranda warnings to high value detainees being held at detention facilities in Afghanistan. John Hinderaker of Powerline, for instance, writes that this is "a real scandal (as opposed to a faux "scandal" like waterboarding)."
Guess what, though. This "scandalous" policy actually began during the Bush administration. One of the worst mistakes the Bush administration made was paying absolutely no attention in the early days to building cases against the people it detained. Evidence was improperly collected or not collected at all. Statements were elicited through torture and other coercive means. So when the Bush administration later decided that it wanted to try its high-value detainees, it had virtually no evidence to work with.
So to build cases for trial, the Bush administration sent in FBI "clean teams" to re-interrogate suspects without reference to prior statements. Here's what the Washington Post reported on February 12, 2008:
UPDATE: Greg Sargent gets a statement from the Obama DOJ:
UPDATE II: Spencer Ackerman reports on a press conference this morning with General Petraeus:
Guess what, though. This "scandalous" policy actually began during the Bush administration. One of the worst mistakes the Bush administration made was paying absolutely no attention in the early days to building cases against the people it detained. Evidence was improperly collected or not collected at all. Statements were elicited through torture and other coercive means. So when the Bush administration later decided that it wanted to try its high-value detainees, it had virtually no evidence to work with.
So to build cases for trial, the Bush administration sent in FBI "clean teams" to re-interrogate suspects without reference to prior statements. Here's what the Washington Post reported on February 12, 2008:
The Bush administration announced yesterday that it intends to bring capital murder charges against half a dozen men allegedly linked to the Sept. 11, 2001, terrorist attacks, based partly on information the men disclosed to FBI and military questioners without the use of coercive interrogation tactics....None of this is at all surprising. Reading someone Miranda warnings doesn't bestow upon them any rights that they don't already have. It merely ensures that any statements made thereafter will be admissible should you ever want to use them in court. So why not read them? It can't hurt. Even the Bush administration eventually realized this.
FBI and military interrogators who began work with the suspects in late 2006 called themselves the "Clean Team" and set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress at secret prisons.
To ensure that the data would not be tainted by allegations of torture or illegal coercion, the FBI and military team won the suspects' trust over the past 16 months by using time-tested rapport-building techniques, the officials said....
Officials said most of the detainees talked to FBI and military interrogators, some for days, others for months, while one or two rebuffed them. The men were read rights similar to a standard U.S. Miranda warning, and officials designed the program to get to the information the CIA already had gleaned by using waterboarding, which simulates drowning, and other techniques such as sleep deprivation, forced standing and the use of extreme temperatures.
UPDATE: Greg Sargent gets a statement from the Obama DOJ:
But Justice spokesperson Dean Boyd emails our reporter, Amanda Erickson, that while some of this has been going on, there’s been no overall policy change. He says:This makes complete sense. If you know you may want to prosecute someone eventually, it's malpractice not to mirandize them. It's a very simple measure that helps preserve evidence. I'm sure its standard FBI practice and has been for decades, including during the Bush years.“There has been no policy change and nor blanket instruction issued for FBI agents to Mirandize detainees overseas. While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees.”
UPDATE II: Spencer Ackerman reports on a press conference this morning with General Petraeus:
A Fox News reporter asks about a Weekly Standard report that detainees were getting read Miranda rights. Petraeus says he has “No concerns at all. This is the FBI doing what the FBI does. … The real rumor yesterday is whether our forces were reading Miranda rights to detainees and the answer to that is no.” Sorry, Steve Hayes.So that confirms everything I wrote above. Troops aren't reading Miranda warnings to people they capture. FBI investigative teams are doing that when they interview suspects, as is standard FBI protocol. This is what the FBI always does. Because it would be irresponsible not to.
posted by A.L. at 9:41 PM
18 Comments:
One of the worst mistakes the Bush administration made was paying absolutely no attention in the early days to building cases against the people it detained.
Apples and oranges. The Bush administration wasn't looking to build cases against the high-level detainees in the early days, as explained in the Hayes piece:
Of course, KSM did not get a lawyer until months later, after his interrogation was completed, and Tenet says that the information the CIA obtained from him disrupted plots and saved lives. “I believe none of these successes would have happened if we had had to treat KSM like a white-collar criminal – read him his Miranda rights and get him a lawyer who surely would have insisted that his client simply shut up,” Tenet wrote in his memoirs.
The Obama administration has thus far refused any attempt to declassify the information Tenet mentions because that information more than likely shows that the Bush administration was right in that enhanced interrogation saved American lives.
From the post:
Reading someone Miranda warnings doesn't bestow upon them any rights that they don't already have. It merely ensures that any statements made thereafter will be admissible should you ever want to use them in court. So why not read them? It can't hurt.
Sure it could; it could cause Americans to get killed unnecessarily. Further on down in the Hayes' piece:
[Rep. Mike] Rogers adds: “The problem is you take that guy at three in the morning off of a compound right outside of Kabul where he’s building bomb materials to kill US soldiers, and read him his rights by four, and the Red Cross is saying take the lawyer – you have now created quite a confusion amongst the FBI, the CIA and the United States military. And confusion is the last thing you want in a combat zone.”
And:
One thing is clear, though. A detainee who is not talking cannot provide information about future attacks. Had Khalid Sheikh Mohammad had a lawyer, Tenet wrote, “I am confident that we would have obtained none of the information he had in his head about imminent threats against the American people.”
Apples and oranges.
Clearly you misunderstand this procedure. It is im,portant to protect innocent individuals against unlawful detention. Since terrorist are guilty - why else do you think they are held and interrogated - they naturally do not need this protection.
Come to think of it, since they are guilty we can skip the trial part also. Waste of time and money: we already know the outcome.
AL- you cannot possibly believe that giving Miranda warnings is costless. Nobody believes this. In the Dickerson case (which reconsidered Miranda) none of the parties or amici claimed that giving Miranda warnings was costless to law enforcement.
I suspect that it will turn out that the Obama administration is not mirandizing detainees, at least not in the same way as is done for ordinary criminal suspects. It would simply make no sense for an administration that has recognized the need for preventative detentiion to do this. If a detainee asks for a lawyer, do you think that questioning ceases? If that is happening, the criticism is justified.
MLS,
You cannot possibly believe that not giving Miranda warnings to people you later hope to try in an American court, or release as innocent, is costless.
We've seen the cost already in the dismal percentage of convictions obtained, and in the difficulty of releasing those later determined to be innocent, in dismantling the gulag that extra-legal detention has created.
I think the episode of the Uighur detainees should teach the Obama administration and all observers the dangers of ignoring the end game. Dimwits may imagine that it will be no problem to simply keep people locked away forever, but, in civilized society, the truth will always come out eventually.
This goes to the heart of the matter. Either we are a civilized society at war with an organized enemy, and can target their combatants, infrastructure, and thus bring their leadership to the table to organize a peace, or we are dealing with a criminal organization where there is no hope of doing that. All that we can then do is apply working crime control techniques and, through them, bring the organization down.
The limitations of the first method have been clearly displayed in Afghanistan and, to a lesser extent, in Iraq.
It's past time to give the second method a chance.
MLS,
Just because you read a detainee Miranda-like warnings does not mean you are compelled to, for instance, provide them an attorney immediately--even if they request one. The FBI doesn't have to do anything it. What it does mean is that if the guy starts talking, you have a much better chance of being able to use his statements later in a legal proceeding. Miranda in this context is merely a prophylactic, and a relatively cost-free one.
Of course, SOME people think that all you have to is simply claim they are terrorists, round them up and decree them guilty. Oops I forgot the "trial" part. But they're terrorists, so who needs that??
SteveAR, it's not 'apples and oranges' it's 'sense and stupidity' - and A.L. is talking sense.
AL- sorry, but I fail to see how the latest information confirms everything you wrote. Your post suggested that detainees should be routinely mirandized because doing so is costless (or, in a subsequent formulation, “relatively cost-free”). If this were so, why wouldn’t the FBI issue Miranda warnings to all detainees? Why wouldn’t the military and the CIA give these warnings as well? If a detainee initially makes unwarned incriminating statements, whether it is to the FBI, the military or the CIA, there is certainly no guarantee that these statements will be admissible (or that the taint of these unwarned statements can be removed by “clean teams”).
It seems to me that there are at least two obvious costs to mirandizing detainees. The first is that you are telling them that they have the right to remain silent. If you tell them that, it stands to reason that some of them will avail themselves of that right. If, on the other hand, the “Miranda-like” warning does not include the right to remain silent, I doubt it would have much benefit for purposes of admitting incriminating statements.
The second cost is that once the detainee invokes the right to counsel, questioning must cease. Again, that is under actual Miranda case law, which could be different than a “Miranda-like” framework which is as yet undefined. As for your suggestion that counsel need not be provided immediately, I am not sure what you are driving at. Are you suggesting that once the detainee invokes the right to counsel, the FBI could just ignore the request and continue to question? If so, this is not very Miranda-like. Are you suggesting that the FBI would stop questioning but leave the detainee without counsel for an extended period, in the hopes that the detainee will make unsolicited admissions? I am not sure that would pass muster in court and, in any event, it strikes me as an ineffective approach to interrogations.
Given that we don’t know when the FBI is issuing Miranda warnings and when it is not, it is impossible to make any assessment as to whether this is appropriate or not.
Of course, a person has every right to remain silent no matter what. There's no law stating that a prisoner of war HAS to say anything to anyone. That's why US soldiers routinely give just their name and rank.
It's really a shame that conservatives had so little respect for the law and American values that they had to resort to the Rubber Hose as a FIRST OPTION.
MLS,
Just because they read the warnings doesn't mean that the FBI is then forced to treat a detainee at Bagram the exact same way it would a U.S. criminal suspect. It's not clear to me that a criminal court would hold FBI interrogators in this situation to the same rules they would a police officer in the U.S.
Giving Miranda warnings or Miranda-like warnings is a way of preceding with an abundance of caution and building an argument for admissibilily and a record reflecting lack of coercion. If the detainee subsequently talks, the odds of those statements being successfully challenged go way down.
As for your supposed downside, i.e., that the detainee will suddenly realize that he doesn't have to talk, I think that's pretty silly. If they don't want to talk, they're not going to talk. And again, I don't think a court would rigidly hold interrogators to U.S. case law (e.g. you can't re-initiate conversation again until a lawyer is provided, etc.)
The FBI can make its own call as to how it proceeds, weighing at each step the need for information against the possibility that a court will later find it to be inadmissible. Merely reading a suspect Miranda rights does not tie their hands or limit their options.
It seems to me that the Obama administration should have at least notified Congress. It had to occur to them that members would find out about what is going on at some point, and without any info from the administration, draw their own conclusions.
It seems to me that the Obama administration should have at least notified Congress. It had to occur to them that members would find out about what is going on at some point, and without any info from the administration, draw their own conclusions.
It had to inform Congress that standard FBI protocol was still being followed? Did it also have to inform Congress that FBI agents continue to wear latex gloves when collecting evidence? Or that they still tape interrogation sessions?
It seems to me that the Obama administration should have at least notified Congress. It had to occur to them that members would find out about what is going on at some point, and without any info from the administration, draw their own conclusions.
It had to inform Congress that standard FBI protocol was still being followed? Did it also have to inform Congress that FBI agents continue to wear latex gloves when collecting evidence? Or that they still tape interrogation sessions?
A.L.:
It had to inform Congress that standard FBI protocol was still being followed?
This isn't exactly something that has been going on for years. Within the Hayes' piece is a May 28, 2009 LA Times piece stating this just started recently:
Under the "global justice" initiative, which has been in the works for several months, FBI agents will have a central role in overseas counter-terrorism cases. They will expand their questioning of suspects and evidence-gathering to try to ensure that criminal prosecutions are an option, officials familiar with the effort said.
Yeah, I think Congress should be in the know on what the hell is going on. Avoiding confusion while a war is going on is always something to strive for, which is something the Bush administration was really bad at doing (avoiding confusion). I would think Obama, and those who voted for him, would want to avoid the mistakes Bush made.
Steve,
Just because the FBI has been tasked with an expanded role doesn't mean that what they are doing now is new or unprecedented. First, the routinely did this kind of stuff in the pre-Bush era (have you seen the movie "The Kingdom"). Second, even it the Bush era, they played this role, especially in the late years. The WaPo article I link to above talks about how FBI "Clean Temas" were sent to interview these detainees in Bagram and elsewhere. The only difference is that Obama is bringing them in earlier so they do more than just clean up the mess.
I wonder how people imagine these people are captured. How many of them are turned in for bounty, how many of them are found near a battlefield, but without weapons, how many are found through informants?
Remember, these people are overwhelmingly citizens of Afghanistan and Pakistan. Sure, there are foreign combatants, but even those are probably Saudi's or from some other nominal ally.
Calling what's going on a "war" is simply an attempt to stoke fear. This is not a war, it's an insurgency, and you don't win by defeating the opposition in battle. You win when the insurgents lose the support of the population. You lose if you don't win before you have to leave -- and you will always have to leave, someday, because staying just feeds the insurgency.
Since the people being read their rights have already been captured, the only "confusion on the battlefield" is in the heads of those who think this is a "war."
Steve, Obama didn't move them to the U.S. because Guantanamo is still open, and therefore he didn't need to. They were hoping to find a country that would take them before the base closed. But if they hadn't, they simply would have moved them to a facility in the U.S.
The plan to close the base did not put any added pressure on them to find an accepting country.
Presumably Andy McCarthy, who was once responsible for prosecuting terrorism cases, was aware of this when he wrote this inane post at National Review - http://corner.nationalreview.com/post/?q=NjBhMTRhNGJiZDA0YjcyYWM1MzlmNTMwZTRiYmJjYmQ=
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