Miranda Misrule & the Bloomer Bomber

The Administration bought itself a heap of trouble when it decided to "mirandize" bloomer bomber Umar Farouk Abdulmutallab and thus to treat him as an ordinary criminal. In the first place, it looks like this decision was made rather incompetently, by the Attorney General alone without consulting the heads of the Intelligence and National Security agencies.

The decision itself is questionable because General Eric Holder doesn't seem to have asked the right question, or if he did he answered it the wrong way. When police arrive at the scene of the crime they have two purposes: one is to make sure that the innocent are protected against any further injury and the second is to make sure that the perpetrator can be prosecuted. The former is primary and usually the courts will not allow actions taken to protect the innocent to prejudice a prosecution. A cop doesn't need a warrant to barge into a residence if he hears someone inside screaming for help.

When Mr. Abdulmutallab was in custody, the most pressing matter was to find out if there were other terrorist plots in execution. The second most pressing matter was to find out who was behind Mr. Abdulmutallab and where they were so we can go capture and/or kill them. Only after those objectives have been pursued as much as they can should the authorities have considered the question whether to treat him as a criminal or an enemy combatant. It seems unlikely that the fifty minutes of questioning to which Abdulmutallab was subject before he was mirandized was enough to gain the intelligence we needed. General Holder went straight to prosecution mode.

But even if it made sense to put prosecution first and national security second, it isn't clear that there was any reason to advise Mr. Abdulmutallab of his Miranda rights. The only reason an investigator needs to read someone his rights is if the former intends to interrogate the latter for the purpose of getting a confession or other information that might lead to a conviction. In that case, the warning is necessary if any such information is to be introduced into court.

Did General Holder really think he needed anything more to get a conviction here? The bloomer bomber walked on an airplane with explosives in his skivvies! The good folks who tackled him did so because they witnessed him trying to blow them out of their underwear. For heaven's sake, what more would a prosecutor need?

The decision to mirandize Umar Farouk Abdulmutallab makes no sense at all in terms of legal strategy or any realistic approach to national security. It makes sense only if you are worried that we have been treating terrorists too harshly, that our treatment of detainees is a cause of rather than a tool in the hands of anti-American sentiment in Europe, that young men like Mr. Abdulmutallab would be less likely to join Al Qaeda if they thought Americans were more scrupulous in their observance of due process. Such fancies as these are commonplace among the American left, out of which our President emerged. That they are guiding our national security policies is cause for concern.

Comments

[George Mason]

The approach to the Bloomer Bomber is the Obama administrations belief that we are not at war. We have "overseas contingency operations." This was not a criminal act. This was an act of war against the United States. Al Queada has declared war on the United States (and declared and declared). They are not engaged in overseas contingency operations, they are at war. Their intent is to bring the war to our shores, which is why the Bloomer Bomber waited until he was over our country to light his more sensitive regions on fire.

[Anthony D. Renli]

I disagree with your assessment of reading the Miranda warning to terrorist suspects on a number of levels.

1) Just because they are not citizens of the United States does not mean that they do not have certain rights, explicitly spelled out by the fifth and fourteenth amendments to the constitution. Whether or not he was read his rights, he still possessed those rights. The only difference before and after reading those rights is that after reading those rights what he said could be used in criminal prosecution. Yes, there was a mountain of evidence relating to the actual bombing, but if we want to prosecute co-conspirators, get warrants to search possible locations of terrorist cells within the United States, or any other possibilities, we may want to have our I’s dotted and T’s crossed.

http://topics.law.cornell.edu/constitution/amendmentxiv

2) You assume that a trained terrorist operative would not be aware of what is VERY common knowledge. If the Miranda warning wasn’t broadcast on every TV show that even hints of an arrest, maybe he wouldn’t have been tipped off that he has the right to remain silent and the right to an attorney…BUT turn on Law and Order any day of the week and you’ll see what is happening. One would guess that before being sent off to die, at some point during his training they might have mentioned what may happen if he gets caught.

(sorry, don't have a link for this one...but again, watch Law and Order, or CSI, or Barney Miller...you'll see the Miranda warning)

3) There is a longstanding tradition of reading rights to terrorist suspects: Richard Reid (the Shoe Bomber) was an English citizen, born in Jamaica, and was reminded of his rights four times within the first two days of his arrest, including five minutes after he was apprehended. The first World Trade Center bombers (who were again, not US citizens), read their rights.

http://www.uniset.ca/other/cs5/211FSupp2d366.html

4) You are assuming that reading the rights of the terrorist suspect would immediately make them stop talking, even if they were already talking. In this case, it has been proven false. According to the FBI he did stop talking after surgery until they went to Nigeria and got his family to assist them. After that he has been very helpful. If we had dropped him into a black site, or taken him to Gitmo where the Rule of American Law is(either missing or different, depending on your point of view), we may not have been able to get assistance from his family that has made him talkative.

http://detnews.com/article/20100203/METRO/2030365/Christmas-Day-plot-suspect-offering--good-intelligence--to-feds

I’m not sure that informing a criminal of rights that they already possess, that we make no secret of in our media, that we have informed other terrorist suspects of in the past, and that hasn’t stopped his giving good intelligence, and may possibly have insured help from his family in giving the intelligence willingly, could be a bad thing.

[KB]

George: Thanks for the comment. I am not sure that the question of whether we are at war or not is all that helpful. Even in a law enforcement context, securing the rights of innocents takes precedence over gathering evidence. What counts is not a state of war, but a state of emergency. That said, we are in agreement.

Anthony: 1) I did not address the question of what rights a non-citizen has. The Distinction I drew between stopping a crime in progress and gathering evidence for a future prosecution applies in any criminal investigation.

2) and 4): If terrorists already know that they have Miranda rights and if this knowledge doesn't stop them from talking, then what, for heaven's sake, is the point of mirandizing them? In fact, the whole point of the Miranda warnings is precisely to encourage suspects not to answer any questions.

3): whether, or in what cases it made sense to read Miranda warnings to terrorists captured in the U.S. is a useful question. I explained why, in this case, it didn't make sense.