How a US Army ‘Gator Gets Info in Less Than 10 Minutes

The first time I taught a one-hour class at the US Military Academy at West Point, a 20-year-old student made it very clear that while he might be studying ethics, law and morality in school, it was practicalities that really concerned him.

"If we are kicking in doors in Iraq," the third year student – known in West Point parlance as a "Cow" – said, "and I find a guy who has a load of materials that could be used to build an IED in his home and explosive residue on his hands, I don't have time to do a by-the-book interview do I? I mean, lives are at stake and we will have minutes, not hours or days, to get the info we need."

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Freedom and Security are not Enemies

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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Some of the News
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                     "Small Plane Crashes Into Office Building In Austin"

Former Vice President Cheney demands enhanced interrogation of pilot  as a suspected terroist.                                  



An Intelligent Way to Enhance National Security?

Ever since the failed attempt to blow up a Northwest airline carrier on Christmas Day, critics have been pressing to militarize the treatment of all terrorism suspects and deny them the basic due process rights provided by the law.

On Tuesday, bills were introduced in both the House and the Senate to require the Attorney General to consult with the Director of National Intelligence, the Director of the National Counterterrorism Center, the Secretary of Homeland Security, and the Secretary of Defense before filing any civilian charges against a foreigner suspected of engaging in or materially supporting terrorists, regardless of where he’s arrested. Senators Joseph Lieberman of Connecticut and Susan Collins of Maine have also written to Attorney General Eric Holder urging him to transfer the failed Christmas bomber, Umar Farouk Abdulmutallab, to military custody. And on Wednesday, six Senators wrote to Holder “in light of recent events” urging him not to try the four 9/11 suspects in a federal civilian court.

Political posturing to look tough on terrorism is not a new strategy for federal lawmakers. But the level of disingenuousness involved in this particular instance is genuinely striking.
After the State of the Union speech last night, Virginia Governor Bob McDonnell complained that “this foreign terror suspect was given the same legal rights as a U.S. citizen” – as if foreigners have not always been entitled to Constitutional due process when brought to trial in the United States.

At hearings last week, Sen. John McCain (R-Arizona) called the decision to place Abdulmutallab in the federal judicial system "a terrible, terrible mistake when it's pretty clear that this individual did not act alone."

Sen. Lieberman called it "a kind of 'Alice in Wonderland' turning of the world of common sense on its head." And former New Jersey Republican Governor Thomas Kean, who led the investigation into the 9/11 terrorist attacks, said he was "shocked and upset" that Abdulmutallab was read his rights before being fully questioned.

Meanwhile at the National Review, Bill Burck, former Deputy Counsel to President George W. Bush and a former federal prosecutor, was “startled” by Dennis Blair’s and Michael Leiter’s admissions last week that “they were never even consulted about the decision” (his emphasis, not mine) to let the FBI handle the interrogation.

But is the FBI’s handling of Abdulmutallab, arrested at a Detroit, Michigan airport, really so shocking?

In fact, as these critics surely know, every single terrorism suspect arrested in the United States during the eight years of the Bush administration after September 11 was initially interrogated by the FBI, as was Abdulmutallab. Ultimately, every one that was tried had their trial in a civilian federal court. Only two individuals arrested in the United States were ever transferred to military custody – Jose Padilla and Ali Saleh Kahlah al-Marri. And in both cases, the Bush administration, after holding the men for years in military detention, charged them as ordinary criminals and accorded them a civilian trial. 

More than 200 terror suspects have been interrogated and tried this way since Sept. 11, including Richard Reid, the “shoe bomber,” in the case most comparable to Abdulmutallab’s.

So as Senator Claire McCaskill pointed out a hearing last week, to start turning all terror investigations in the United States over to the CIA or the military would be a drastic departure from longstanding precedent.

The critics’ mantra since Christmas that offering terror suspects Miranda rights after an initial intelligence interrogation by the FBI dooms the chances of obtaining useful intelligence is also wholly unsubstantiated. Last week Senator Jeff Sessions (R-Ala.) chastised FBI Director Robert Mueller for allowing FBI agents to read Abdulmutallab his Miranda rights. But as Senator Sheldon Whitehouse (D-RI), a former U.S. Attorney, pointed out, an actual review of real-life terrorism prosecutions reveals that “very successful interrogations have been conducted and very significant intelligence information has been obtained from suspects who have been Mirandized.” In fact, sometimes giving Miranda warnings “is actually a part of an interrogation plan for that particular subject,” he said.

Cooperation of suspects arrested in the U.S. criminal justice system has led to invaluable intelligence about the existence of al-Qaida sleeper cells within the United States, training camps in Afghanistan, how to safely dismantle the device used by Richard Reid (the shoe bomber) and details regarding some of the most high-level terrorism suspects, such as Khalid Sheik Mohammed and Hambali, the mastermind of Jemaah Islamiah, a terrorism network in Southeast Asia.

Previous Senate Judiciary Committee hearings have also revealed that FBI-led interrogations have actually been more effective than the far more aggressive ones conducted by the CIA and Defense Department.

In any event, a detainee arrested in the United States and held in military custody is still entitled to a legal representation.

Meanwhile, civilian trials have been far more successful than military commissions, which have won only three convictions in eight years, as compared to 195 in civilian criminal court.

None of this is to suggest that the Bush administration was ‘soft on terror.’ But it wasn’t very smart on terror, either. Not only haven’t most military detainees been convicted, but the detention of hundreds of suspects for years without charge or trial created a national security nightmare for the United States. Hundreds of Muslims were subjected to unlawful and ineffective “enhanced” interrogation techniques devised by inexperienced and unprofessional psychologists with no background in intelligence gathering. The use of those techniques fomented so much anger in the Muslim world against the United States that even President Bush and former presidential candidate John McCain eventually acknowledged that the Guantanamo Bay detention facility had become a liability for the United States and should be closed.

FBI Director Mueller made clear last week that the FBI brought in high-level interrogators who first questioned Abdulmutallab for intelligence purposes, and obtained valuable information, before reading him his Miranda rights. That’s part of FBI protocol for handling terror suspects. But to forbid the United States from trying terrorists as criminals is to force the US government to continue down the same reckless course that’s landed us in our current national security quagmire.

If there was one thing Senators agreed on at their hearings last week, it was that the government needs a rational way of deciding where and how to interrogate and try terror suspects, based on input from top terrorism specialists and interrogators. Administration officials have promised to create just that. But if the administration bows to political pressure and starts subjecting every terror suspect to CIA interrogation and indefinite military detention, it’s only going to exacerbate the current conundrum.

The U.S. Supreme Court has said the government can detain “enemy combatants” – now called “unprivileged enemy belligerents” -- captured on a battlefield for the duration of a military conflict. But the court in the Hamdi case was talking about the battlefield in Afghanistan; it did not suggest that the airport in Detroit could be a battlefield. To expand the definition that broadly would allow the government to get around the Constitution in almost any criminal investigation by simply declaring the target a potential terrorist. And what would prevent the government from throwing a U.S. teenager surfing Jihadi web sites at home in New Jersey into coercive interrogation and years of indefinite detention? Could that possibly comport with the U.S. Constitution, let alone international law?

Members of Congress pressing for legislation that would require the government to respond to all potential terror cases militarily are stepping onto a slippery slope they’ll likely regret if they can convince their colleagues to join them.

In his State of the Union speech, President Obama called on Congress to “put aside the schoolyard taunts about who is tough” and “reject the false choice between protecting our people and upholding our values.”

He could have gone further and said that rejecting our values actually increases the danger to Americans. Guantanamo Bay was bad enough; hundreds of jihadi suspects subjected to secret interrogations and indefinite detention on U.S. soil is hardly an intelligent way to enhance national security.

What Do We Lose by Mirandizing Nigerian Who Sought to Blow Up Plane on Christmas Day?

An army of political pundits is crying foul over the transfer of Umar Farouk Abdulmutallab to the federal criminal court system.

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