The meme of 9/11 changed everything remains in full force in the hallways of the Washington Post, where an editorial ripped the handling of Umar Farouk Abdulmutallab, whom they call the Christmas Day Bomber due to an excess of propriety and lack of a sense of humor.
The background is that after 50 minutes of questioning, the bomber who had sewn explosives into his underpants was given Miranda warning and, accordingly, clammed up. No, the bastion of first amendment testosterone wasn’t bothered by the 50 minutes before Miranda. Quite the contrary.
UMAR FAROUK Abdulmutallab was nabbed in Detroit on board Northwest Flight 253 after trying unsuccessfully to ignite explosives sewn into his underwear. The Obama administration had three options: It could charge him in federal court. It could detain him as an enemy belligerent. Or it could hold him for prolonged questioning and later indict him, ensuring that nothing Mr. Abdulmutallab said during questioning was used against him in court.
It is now clear that the administration did not give serious thought to anything but Door No. 1. This was myopic, irresponsible and potentially dangerous.
Harsh words indeed, but not nearly harsh enough to sate former federal prosecutor Bill Otis at Crime and Consequences, who then rips the WP for not realizing that this isn’t a one-time screw-up, but a systemic failure.
What the Post still fails to understand is that the administration’s “myopic, irresponsible and potentially dangerous” blunder in this case was less a result of one bureaucratic miscommunication than of the inherent confusion at the base of its thinking about terrorism and the law. As long as there is indecision about whether violent jihadists should be treated as standard criminals or as the illegal combatants they are, blunders like this are inevitable.
Sadly, Utah lawprof and former federal judge, Paul Cassell, is on board with Otis in this post at the Volokh Conspiracy.
The analysis seems spot on to me. I can’t for the life of me figure out why as a society we would want to give Miranda warnings to such a high-value suspect like Abdulmutallab. While there is debate about the extent to which Miranda warnings reduce the overall confession rate (I think it is significant, while others disagree), surely we can all agree that in the context of Abdulmutallab’s interrogation such warning were not going to be helpful in obtaining information about, for example, where he trained and what other attacks might be planned.Whether Miranda warnings change the game or not (and given how many suspects vomit inculpatory statements despite the warnings, the efficacy of the warnings is very much in question), there’s little doubt that it would be far easier for law enforcement to obtain information without them. Of course, it would be far easier for law enforcement to obtain evidence if they could just break into homes at will. In fact, they might be really, really effective if there were no limits on law enforcement at all. Does anyone doubt this?
But here we have a man attempting to blow up a plane filled with Americans, in American airspace, over American soil, seized by American law enforcement. And the views of a newspaper, a former federal prosecutor and a former federal judge is that the FBI blew it, and blew it huge, by adhering somewhat to American law. Mind you, nobody’s even mentioning the first 50 minutes of pre-Miranda custodial interrogation.
While it’s a fair question whether any reasonable person would expect a guy prepared to blow up his underpants to know which cave Osama bin Laden calls home, it’s shocking that these views so completely and utterly reject the basic rule of law, a fundamental law enforcement practice, the giving of Miranda warnings, at will.
The justification, of course, is that the underparts bomber might have had information. It’s possible, though not likely, that he had much of value to offer. But since when does that provide the measure of ignoring American law?
There is, however, a side argument to be considered. Miranda is a rule of admissibility. They could have questioned Abdulmutallab till the cows came home without warnings of any sort, provided that the statements gained were not used against him at trial. While still a constitutional violation, the practical remedy would have been meaningless. Of course, this would entail a deliberate determination on the part of the FBI to violate our Constitution in the process. Does this matter if there’s no effective downside?
It’s disconcerting that voices who have, in their former lives, sworn fealty to the Constitution, and a newspaper whose ability to express its views depends on it, are so quick to scream that law enforcement blew it when they comport themselves (somewhat) with the rules. If they’re so quick to toss out the Constitution when it comes to interrogation, can it be much of a surprise that a little torture doesn’t bother them?
It might be different if there was some hard information that the underpants bomber knew of a dirty bomb about to be detonated in Times Square, where the lives of thousands depended on immediate information. Maybe dire need, though conceptually problematic, might render this widespread disdain for what makes us us understandable. But there was nothing like that involved here; he was a “terrorist” and that was all it took for these fine Americans to declare their desire to shred the Constitution. It’s that simple.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
It’s interesting that after all this time we are still debating about and trying to evolve our response to terrorists. Although a slippery slope argument is a feeble one, one can almost see the direct line between rendition, Miranda violation, and torture. The line certainly has to be drawn somewhere, and I don’t envy those responsible for deciding where somewhere is.
I hate to offer a silly suggestion, but what’s wrong with the line drawn by those good ol’ forefathers in that Constitution thingy?
I’m trying to understand this more, and I loved seeing you take both sides of the argument (side argument re:admissibility).
I guess I want to see what specifically in the Constitution prohibits interrogating the suspect at all without reading him his Miranda rights.
I guess I see door #3 as a real possibility, but if this is shown to violate our Constitution directly, then I can agree with that.
Miranda warnings are a judicial requirement crafted to safeguard 5th and 6th Amendment rights to not bear witness against oneself and to counsel. The problem with door #3 is that it’s a deliberate circumvention of these rights, designed to violate the Constitution in such a way as to eliminate the remedy for the violation. It’s an end justifies the means solution.
Would you really like the official government policy to be to intentionally violate the United States Constitution and then circumvent the remedy?
Miranda was not designed to protect us from the bad guys. It was designed to protect us from becoming the bad guys.
> It might be different if there was some hard information that the underpants bomber knew of a dirty bomb about to be detonated in Times Square, where the lives of thousands depended on immediate information.
How would you know without being able to ask?
While I might otherwise be disinclined to let your comment post, since you didn’t give a valid email address (suckmydick.com isn’t really funny), I allowed it anyway because you ask a good question. The answer is very clear: You don’t violate the law first in the hope of justifying it afterward. The idea is cause first, effect afterward.