Although I wanted to shout "I told you so!" after so many years of waiting and warning, it was nonetheless gratifying to see several news accounts yesterday revealing that the FBI finally relied on the "public safety exception" to the Miranda rule to interview the so-called Times Square attempted bomber suspect, Faisal Shahzad. This comes almost nine years after I unsuccessfully surfaced the Quarles legal issue beginning on the afternoon of 9/11/2001 with our U.S. Attorneys and then again on the morning of 9/12 with FBI and Department of Justice officials in Washington DC. In light of all of the counterproductive and insanely wrong responses to 9/11, it seems incomprehensible now but I was told "no public safety emergency" existed on 9/11 and again on 9/12. Since this clearly seemed to be a wrong judgment, I immediately documented the refusal by FBIHQ and DOJ in a memo that became the very first document in the FBI's "Pentbomb" legal sub-file.
I wrote the legal memo just a couple days after 9/11 to point out how our agents were wrongly stopped from interviewing an al Qaeda suspect who happened to already be in our custody when the Quarles Public Safety Exception would have applied and was constitutionally permissible.
Following up in October 2001, I made several calls not only to FBI Headquarters but also to the legislative staffers who were drafting the "Patriot Act" to try to get them to add provisions that would help clarify the Quarles case law, but the legislators were in such a hurry to get the "Patriot Act" passed that my request was ignored.
The official refusal to interview/interrogate Moussaoui that continued after 9/11 nearly led to tragic consequences as "al Qaeda shoe bomber" Richard Reid came perilously close to bringing down an airliner in December 2001. The two terrorists, it was later revealed, knew each other. So Moussaoui, had he been interviewed, might have identified Reid before his attempted bombing.
When I got the chance to talk to staff for the Joint Intelligence Committee Inquiry, I of course again brought up the issue. Footnote number 8 of my so-called "Bombshell Memo" of May 2002 reads:
For starters, if prevention rather than prosecution is to be our new main goal, (an objective I totally agree with), we need more guidance on when we can apply the Quarles "public safety" exception to Miranda's 5th Amendment requirements. We were prevented from even attempting to question Moussaoui on the day of the attacks when, in theory, he could have possessed further information about other co-conspirators. (Apparently no government attorney believes there is a "public safety" exception in a situation like this?!)
Two weeks later, on June 6, 2002, I included a lengthier discussion of the Quarles principle and the lower courts' differing decisions in my statement and responses to the Senate Judiciary Committee. If I remember right, Sen. Kyl even asked me a question or two about the "public safety exception."
Although a couple of legal commentators like Brookings Fellow Stuart Taylor Jr. picked up on and discussed the issue, the Bush Administration, unbeknown to anyone at the time, had already begun by June 2002 to go over to the "dark side," ordering the CIA to start "harsh interrogation tactics" and to use extralegal torture at "black sites."
My call to the Department of Justice, to Michael Chertoff's office, in early July 2002 to make a final attempt to ask that an interview of Moussaoui be conducted (as he was indicating he might talk), also fell on deaf ears. No wonder since, as we now know, my call in July 2002 was just a day or two from the date that Condi Rice conveyed Bush's authorization to the CIA to begin waterboarding suspects.
My (highly unpopular, coming as it did at the peak of the Bush Administration's war fever)) letter to the FBI Director in late February 2003 was published by the NY Times on March 6 and warned that the invasion of Iraq would prove counterproductive to reducing terrorism. That letter questioned the hypocrisy of the obvious failures to investigate and reduce terrorism by less dramatic and more focused, legal means, by simply interviewing the terrorist suspects we already had in custody rather than bombing a country that had nothing to do with 9/11:
If, as you have said, "the prevention of another terrorist attack remains the FBI's top priority," why is it that we have not attempted to interview Zacarias Moussaoui, the only suspect in U.S. custody charged with having a direct hand in the horror of 9/11? Although al-Qaeda has taken pains to compartmentalize its operations to avoid compromise by any one operative, information obtained from some al-Qaeda operatives has nonetheless proved invaluable. Moussaoui almost certainly would know of other al-Qaeda contacts, possibly in the U.S., and would also be able to alert us to the motive behind his and Mohammed Atta's interest in crop dusting. Similarly, there is the question as to why little or no apparent effort has been made to interview convicted terrorist Richard Reid, who obviously depended upon other al-Qaeda operatives in fashioning his shoe explosive. Nor have possible links between Moussaoui and Reid been fully investigated. It therefore appears that the government may have sacrificed the possibility of acquiring information pertinent to future attacks, in order to conduct criminal prosecution of these two individuals. Although prosecution serves worthy purposes, including deterrence, standard practice in "Organized Crime/Terrorism 101" dictates imaginative, concerted attempts to make inroads into well-organized, cohesive groups. And sometimes that requires "dealing with the devil." In short, it is a matter of priorities. And lack of follow-through with regard to Moussaoui and Reid gives a hollow ring to our "top priority;" i. e., preventing another terrorist attack.
Throughout the ensuing years, including after my retirement from the FBI, I kept discussing the availability of the "public safety exception" in articles, op-eds, speeches, blog pieces (many here on Huffington), and interviews, whenever the topic was how to conduct effective investigation of terrorism and still adhere to the Constitution and maintain civil liberties. Those are just some of links to my efforts, most recently an interview after the "Nigerian underpants bomber" incident. After all this time, it IS really gratifying to see these efforts might have finally paid off.
I don't think we can necessarily blame FBI and DOJ authorities for the failure all these years to grasp that there are constitutionally permissible and pragmatically effective ways of investigating terrorism without violating the Constitution or trampling on people's rights. The highest levels of the Bush Administration were responsible for pushing the FBI, DOJ, CIA and other intelligence agencies into the "dark side" methods and almost no one stood up to the pressure. As a result, we lost the moral high ground. Greater numbers of people around the world and even in our own country were radicalized against the United States.
We still have large numbers of ignorant right-wingers who criticize the legal methods as being "soft on terrorism" when in fact it was their unethical and illegal methods that have served to increase the terrorist threat. But as I've been saying for almost nine years now: "We Can Follow our Ideals and Still Fight Terrorism". It's been the only answer from the start.