By Gabor Rona, International Legal Director and Interim Director, Law and Security Program
Vice President Joe Biden hit the nail on the head when he said Dick Cheney cannot change history and that his recent rhetoric is misinforming Americans. The former Vice President's hypocrisy was clear last weekend when he criticized of the Obama Administration's handling of alleged Christmas bomber Umar Farouk Abdulmutallab. It's time to set the record straight.
It turns out that Umar Farouk Abdulmutallab is providing current, actionable intelligence about al Qaeda in Yemen, despite having been charged in federal court instead of in a military commission, despite being in civilian law enforcement rather than military custody, despite having been spared torture, despite Miranda warnings, despite having been afforded a lawyer who is advising him every step of the way.
The FBI enlisted his family to encourage his cooperation. That would not likely happen in military custody. FBI Director Mueller testified that the U.S. criminal justice system can offer suspects incentives to give truthful information. He emphasized the word "truthful" as if to drive home the point that coercive interrogation is counterproductive, since suspects will say whatever they think will make the abuse stop.
Meanwhile, the "tough on terrorism" - including former Vice President Cheney - crowd is ramping up the rant: "Why should we give alien terrorists constitutional rights?"
First, the words "give" and "rights" do not belong in the same sentence. We do not speak of "constitutional privileges," we speak of "constitutional rights." Privileges are given and may be withheld. Rights are rights.
Second, "alien" (meaning non-U.S. citizen) serial killers, bank robbers and drunk drivers are no less the owners of constitutional rights than are American citizens. Same goes for terrorists. For a country built on immigration and precepts of equality under the law, a "debate" about whether non-citizens accused of crimes in the U.S. have constitutional rights is about as relevant as whether they are also subject to the law of gravity. Those who doubt these propositions, including several Senators who should know better, doubt the very concept of constitutional rights.
Third, what really seems to be animating this debate is the false assumption that military treatment results in better intel than its civilian counterpart.
Let's start with interrogation. Whether in civilian or military custody, a suspect has the right to remain silent. If you think otherwise, it can only be because you believe that coercive interrogation is permitted. Aside from the well-established fact that abusive treatment is counterproductive, it is also immoral (remember John McCain correctly and eloquently noting that this is about who we are, not about who they are?) and illegal.
Well, then what about Miranda warnings? Turns out, Abdulmutallab was questioned for some time prior to Miranda. This is permissible for any reason so long as the results of that initial interrogation are not offered at trial. In other words, failure to give Miranda is not a constitutional violation. It's the introduction of non-Mirandized statements at trial that is the violation. And if the reason to withhold Miranda warnings is really public safety (e.g., are there other bombers on other planes right now?), then the non-Mirandized statements may still be used at trial. Abdulmutallab is, in fact, a poster child for why Miranda is not an issue in a typical terrorist attack case. There were solid eyewitnesses, so prosecutors don't need his confession to convict him and can interrogate him to their heart's content without Miranda and without jeopardizing a prosecution. Consistent with this understanding of the law, he was only Mirandized after he stopped providing information following his initial interrogation, and following consultation between the FBI, CIA, Justice Department and State Department.
What about the right to counsel? Here too, no real difference. "Unprivileged enemy belligerents" in military custody in the U.S. are just as entitled to lawyers as are criminal suspects in federal criminal custody.
What about trials? Fact is, federal courts have put away over 200 international terrorism-related suspects since 9/11. The discredited, dysfunctional, on-again-off-again Military Commissions have put away 3, two of whom are now free and the third is still contesting the validity of the proceedings. Military commissions simply provide defendants with many more grounds to challenge their convictions than federal courts do.
True, the international laws of war authorize detention without charge or trial in some instances. But the promiscuous abuse of that power has led us into a quagmire of illegality that values cheap "tough on terrorism" sound bites at the expense of sound counterterrorism policy.
Remember Richard Reid, who also tried to blow up a plane with a bomb in his clothes and who pled guilty to federal charges in 2003 and got life? "Enemy combatant" detention was already well established but there was no outcry then about the choice of civilian interrogation, detention and prosecution. He was given Miranda warnings within minutes of arrest and they were repeated five times! What's the difference? Shoes v. underwear? Bush-time v. Obama-time? "Reid" v. "Abdulmutallab?" White vs. black? I hope none of the above. But what then?
Dick Cheney and other "tough on terrorism" lawmakers and pundits play a dangerous, cynical game by falsely painting the administration as weak. Enough from those who are willing to sacrifice both civil liberties and national security to score political points.
Contrary to the fear mongers' platform, freedom and security are not enemies. They are interwoven threads of one fabric that is America. Those who understand this should be pulling the lever for civilian, not military, treatment of terrorism suspects every time.
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