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Interrogating Terrorism Suspects and the Search for Truth

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President Obama recently released a statement on the apprehension of Ahmed Abu Khatallah, who is alleged to have played a role in the attacks on Americans in Benghazi and is now reported to be "talking freely" without a lawyer. Are uncounseled statements by suspects a good thing?

It is common knowledge that, under the laws of our country, an accused has the right to remain silent during custodial interrogation by law enforcement. This right is accompanied by the right to have counsel present and to be appointed if the accused cannot afford to retain a lawyer. The name for these protections -- "Miranda rights" -- comes from the 5-4 decision of the United States Supreme Court in Miranda v. Arizona in 1966.

According to the legal research database WeslawNext, the Miranda decision has been cited in over 54,000 opinions by courts around the country in the half-century since it was issued. The decision has reached the status of an export commodity: anyone who watches American movies and television anywhere in the world has likely heard a recitation of Miranda rights during an arrest on screen.

So what harm is there in setting aside the adversary system and interrogating suspects without a lawyer? The Supreme Court addressed that impulse in Miranda itself:

"The presence of counsel at the interrogation may serve several significant subsidiary functions... If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. . . . The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police..."

This analysis matters to the work of law enforcement and the intelligence community just as much as criminal defense attorneys. The adversarial process is a search for the truth, and the sooner counsel are involved in the procedure, the better. If a suspect decides to cooperate and provide information to the government, an accurate statement reduces the individual's susceptibility to cross-examination should he or she ever testify at trial as a government witness.

Trustworthiness also matters because, under our current law, the government can select which parts of a statement to admit at a trial of the accused. Pause for a moment and consider that proposition: the government can pick and choose which portions of a statement to law enforcement to use against the person who made it.

Federal courts typically analyze the propriety of such editing under the "rule of completeness." This doctrine is memorialized in Federal Rule of Evidence 106, which says that, if one side introduces part of a recorded statement into evidence, the other side can require the introduction of any other portion "that in fairness ought to be considered at the same time." But because Rule 106 is not a Constitutional right, it shields the government in persuading courts to exclude portions of a defendant's statement as "self-serving hearsay" or as irrelevant.

The issue arose last March in a terrorism trial where I was one of the lawyers for Suleiman Abu Ghayth, whom a jury convicted of conspiring to kill Americans and providing and conspiring to provide material support and resources to terrorists. In response to the government's effort to introduce only portions of the client's uncounseled statement to law enforcement, the defense sought the introduction of the statement as a whole, in unedited form. I argued:

"[The defendant's] right to present a defense must include cross-examination on the accuracy, credibility and scope of any statement that the government seeks to introduce in recorded or testimonial form. Any assertion within his statement is material: where, as here, the government's proof hinges on a defendant's statement, the jury must be entitled to deliberate on the statement as it was made to law enforcement, without modification. Fairness requires it. Once the government elects to question a criminal defendant and then introduces his statement against him at trial, the statement becomes an issue of fact for the jury."

Trials by jury are time-consuming, inefficient and expensive. They eat up resources of the court, and they require jurors to take time out of their lives to decide the facts in cases that can stretch on for weeks or even months. Jury trials are also the foundation of our system of justice. Juries are included in Article III of the Constitution, along with judges and the courts.

What happens when Constitutional protections designed to reinforce the integrity of this system may be trumped by the Rules of Evidence? And, if we fail to ensure the trustworthiness of facts at any stage of the truth-seeking process, what do our ideals and principles of justice mean?