The Obama administration has been excoriated by Democrats, Republicans, and the media for their myopic, irresponsible, potentially dangerous, and amateur handling of Failed Flight 253 Bomber Umar Farouk Abdulmutallab. Refusing to acknowledge the reality of their failure, the Obama administration has instead chosen to make a series of fantastic claims that have no basis in reality.
In a letter dated February 3, 2010, Attorney General Eric Holder writes: “Across many Administrations, both before and after 9/11, the consistent, well-known, lawful, and publicly-stated policy of the FBI has been to provide Miranda warnings prior to any custodial interrogation conducted inside the United States. The FBI’s current Miranda policy, adopted during the prior Administration, provides explicitly that ‘[w]ithin the United States, Miranda warnings are required to be given prior to custodial interviews . . . .'”
The Obama administration repeated this claim in a USA Today op-ed by Deputy National Security Adviser for Homeland Security and Counterterrorism John Brennan who claimed: “The most important breakthrough occurred after Abdulmutallab was read his rights, a long-standing FBI policy that was reaffirmed under Michael Mukasey, President Bush’s attorney general.”
As former Attorney General Mukasey details in today’s Washington Post these claims are false:
Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite. The Supreme Court held in Hamdi v. Rumsfeld that “indefinite detention for the purpose of interrogation is not authorized” but also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant — even if he is a citizen, and Abdulmutallab is not — is to challenge his classification as such a combatant in a habeas corpus proceeding. This does not include the right to remain silent or the right to a lawyer, but only such legal assistance as may be necessary to file a habeas corpus petition within a reasonable time. That was the basis for my ruling in Padilla v. Rumsfeld that, as a convenience to the court and not for any constitutionally based reason, he had to consult with a lawyer for the limited purpose of filing a habeas petition, but that interrogation need not stop.
Stuart Taylor of National Journal has also reviewed the facts and law and concludes in an article title More Miranda Idiocy:
Reasonable people disagree about how much coercion interrogators should use to extract potentially lifesaving information from terrorists. (None at all, President Obama unwisely ordered soon after taking office.)
But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.
Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.
Holder claimed in a February 3 letter to Senate Republicans that it is “far from clear” that the government has the legal authority to hold a suspected enemy combatant captured in the United States without access to an attorney. He said that Mukasey, in his previous role as a U.S. District judge, had ruled that a detainee named Jose Padilla “must be allowed to meet with his lawyer,” and that a federal Appeals Court in New York had later found the military detention of Padilla to be unlawful.
Holder misleadingly omitted critical facts. First, Padilla was a U.S. citizen. Second, Mukasey’s ruling did not involve Padilla’s initial interrogation but rather his right — after more than eight months in military detention — to have a lawyer’s help in petitioning for release. Third, the Supreme Court reversed the Appeals Court ruling for Padilla on jurisdictional grounds in 2004. Fourth, the justices held the same day, in the case of Yaser Esam Hamdi, that a U.S. citizen captured abroad and linked to “forces hostile to the United States” can be held in this country without charges as an enemy combatant. Fifth, another federal Appeals Court, in Richmond, Va., later upheld the military detention of Padilla in the U.S. and also (as Holder noted in passing) of Ali Saleh Kahlah al-Marri, a suspected Al Qaeda agent from Qatar who was arrested in Peoria, Ill.
The votes in these cases were close, and it’s fair to say that the law on long-term military detention of suspected enemy combatants captured in the United States is not settled. But the weight of legal precedent is that the Obama administration had ample authority to subject Abdulmutallab to days or even weeks of incommunicado interrogation. It chose to Mirandize him instead.