I don’t know about you, but I feel safer already. Consider this story, from the Washington Examiner’s Byron York, just dropped a few minutes ago at about a quarter-past-nine on Sunday night and should be enough to make your head spin.
It seems as though our favorite Christmas Day underwear bomber, Umar Farouk Abdulmutallab, the Yemeni-trained Islamic jihadists whose own father warned of his radicalism, who was banned from Britain but allowed to fly into the United States, and who came out and admitted to law enforcement officials right away that there were many more like him, was interviewed for a whole 50 minutes before being Mirandized and provided with taxpayer-funded legal counsel.
Here’s what York had to say about it:
The news came in an Associated Press reconstruction of Abdulmutallab’s first hours in custody. The AP reported that Abdulmutallab “repeatedly made incriminating statements” to agents of the Customs and Border Protection who originally took him into custody. Then Abdulmutallab made more statements to doctors who were treating him for burns and other injuries. Only later did FBI agents interview him — a session that lasted, according to the Associated Press, for “about 50 minutes.” Before beginning the questioning, the AP continues, “the FBI agents decided not to give him his Miranda warnings informing him of his right to remain silent” — apparently relying on an exception to Miranda that allows questioning about imminent threats.
After that, Abdulmutallab went into surgery. It was four hours before he was available for more questioning. By that time, the Justice Department in Washington had intervened. A new set of agents read Abdulmutallab the Miranda warning, telling him he had the right to remain silent — and thereafter, Abdulmutallab remained silent.
York went on in his Examiner piece to give a brief synopsis of White House Press Secretary Robert Gibbs’ interaction with Fox News Channel’s Chris Wallace earlier today on Fox News Sunday. You can read it there at the Examiner; I’ve stopped listening to, trusting and caring about what comes out of the mouths of this administration long ago.
My issue here is not the doubletalk from the Obama administration. That much is expected. My issue is the continued treatment by the Obama administration of what used to be the Global War on Terror as a law enforcement operation. Back on August 24, 2009, the White House announced that it had created a brand new high-value detainee interrogation unit. That day, I knew what they were doing. That day, I knew that they were only trying to distract from the first volley of “NO!” from the American people with regard to the administration’s push for health care reform.
The announcement of the brand new high-value detainee interrogation unit came on the same day as the White House announced that it had released back into Afghanistan a jihadist who had injured two American soldiers in a 2002 grenade, and that Attorney General Eric Holder announced his intent to appoint someone to officially investigate the conduct of CIA interrogators. So, our president decided to investigate the interrogators who had kept America safe since September 2001, but it was okay — he created a whole new high-value detainee interrogation unit! Feel safe, America.
“Is this really the White House with which we’d like to entrust a brand new, high-value detainee interrogation unit like the one announced today by administration officials?” I asked that day. “I don’t know about you, but as an American who enjoys breathing, I’d rather the terrorists be handled and overseen by officials who actually have American national security at heart.”
And, seriously — where was that unit on Christmas Day, anyway? If there were a dedicated unit for just this situation, why didn’t they have a go at Abdulmutallab?
It doesn’t matter. That we are extending the Fifth Amendment privilege against self-incrimination to foreign terrorists at all is enough. Abdulmutallab didn’t want to live out the rest of his days with a synthetic scrotum — he wanted to die for his cause, and bring nearly 300 innocent people in the air and countless people on the ground with him. He wanted to meet those 72 virgins, never mind the cacophonous laugh they would have enjoyed at the expense of the charred crater formerly known as his minerals.
The problem here is the slippery slope upon which this administration has brought us all. As I’ve written here before, the case law surrounding Miranda v. Arizona and the Fifth Amendment privilege against self-incrimination has advanced to a point where the protection has been held to apply even before the rights made famous by 19,327,445 episodes of Law & Order are read to a ne’er-do-well in custody. Here was my Miranda lesson, circa June 2009:
Miranda, rooted in the Fifth Amendment, opens up a whole new can of worms. An individual’s silence or speech while in custody is protected by the privilege against self-incrimination, a privilege extended to defendants prohibiting the admission of statements–or lack thereof–obtained during “custodial interrogation” unless procedural safeguards had been employed to protect it, a privilege which carries with it the implied assurance that silence in the face of government questioning will not be penalized, that the right to remain silent will not be encumbered by the government through comments made at trial about a defendant’s decision to exercise that right.
In Miranda v. Arizona, the seminal Fifth Amendment case from which the Miranda rights draw their name, “custodial interrogation” was defined as any questioning brought on by law enforcement officers after an individual has either been taken into actual custody, or deprived of his freedom in any significant way. Since Miranda in 1966, however, the scope of Fifth Amendment protection for individuals has expanded — the the protection against self-incrimination could extend even before an individual has been taken into custody, and even the Miranda warnings themselves could be perceived as relatively ceremonial.
In United States ex rel Savory v. Lane, a 1987 case which questioned whether a prosecutor could cite a defendant’s silence as substantive evidence of his guilt, the Seventh Circuit Court of Appeals determined that the privilege against self-incrimination applied to the defendant . . . even before he was remanded into custody. In that case, the defendant had refused to speak with police officers when first asked about the murder of two teenagers and, even though the silence came at the start of the investigation and before the defendant was taken into custody, the court nonetheless held that the self-incrimination clause applied not only to a defendant’s statements or silence in custody and before trial, but also to a defendant “even before arrest.” In 2000, the Ninth Circuit Court of Appeals in United States v. Whitehead noted that the right to remain silent derives from the Constitution and not the Miranda warnings, and held that regardless of whether any warnings are conveyed, any comment in court regarding a defendant’s exercise of that right violates the Fifth Amendment. In that case, the defendant was never apprised of his Miranda rights as customs officials searched his vehicle and found drugs along the U.S.-Mexico border, yet the government was nonetheless barred from commenting at trial on any communication or lack thereof.
Now, there are other decisions from other circuits which lean in the opposite direction, but the serious potential for problems is certainly there. Regardless, it shows that, once again, this administration has made a major national security decision without weighing any of the possible downhill consequences. If this truly is to be treated as a law enforcement operation, if these high-value detainees are going to be brought to American soil to stand trial, the government will be absolutely, positively handcuffed with regard to what they’re able to do to bring a conviction, and the terrorists, the ones actively working to snuff out American lives, will be given yet another advantage.
Under Miranda, the terrorist who refuses to answer questions while being interrogated and after being apprised of his rights is fully within his right to do so. Under Savory, the terrorist need not be in custody, as his right to remain silent could extend even to the battlefield. Under Whitehead, the terrorist need not even be apprised of his–I can’t believe I’m even writing this–constitutional rights in order to enjoy them. Essentially, the terrorist who stands silent in the face of any sort of questioning, in any sort of situation, must be treated as if he has asserted his right, under the Fifth Amendment of the United States Constitution, to remain silent.
That day last June, angered by the news that President Obama had ordered any and all captured terrorists Mirandized–even on the battlefield–I wrote essentially that any bloodshed here at home should be blood on the hands of this administration.
“Mark my words,” I wrote. “Barack Obama’s decision to order detainees Mirandized will unquestionably cost American lives, if not here at home because all effective interrogation of high-value detainees is off the table, then on the battlefields in Afghanistan, Iraq and beyond, as murderous jihadists captured in the act of killing or attempting to kill American soldiers have no reason whatsoever to even apprise our troops of anything they know, from the position of other terrorists to the location of road-side bombs. We cannot torture them. We cannot waterboard them. We cannot slap their face or annoy them with loud music. And, now, they can feel all warm inside knowing that their continued silence in the face of any scrutiny or any questioning, anywhere, cannot even garner them a legal slap on the wrists here in American courts.”
The treatment of Umar Farouk Abdulmutallab is that the manifestation of that warning in progress. We are traveling down a road which is unsustainable, playing political games with the safety and security of innocent Americans. This pattern of treating terrorists like citizens and citizens like terrorists must stop.
For more than seven years after the attacks of September 2001, Barack Obama’s predecessor kept us safe. Since then, however, we’ve been introduced to Abdulhakim Mujahid Muhammad, Nidal Malik Hasan and Mr. Testicles himself, Umar Farouk Abdulmutallab. Muhammad came back from Yemen in time to murder a U.S. Army recruiter in Arkansas in June 2009, say at the time that “it wasn’t murder, it was war,” and recently admit to ties to Al Qaeda. Hasan, whose mentor and former Virginia Imam was the same cleric who helped Abdulmutallab in Yemen, killed 13 and wounded more than 30 Americans at Fort Hood this past November. And Abdulmutallab, of course, tried unsuccessfully to blow up an airliner en route to Detroit carrying nearly 300 people.
This is not a law enforcement operation. This is war. And in war, setting an arbitrary cut-off point for the interrogation of a suspect is absolutely out-of-the-question. Until we quit playing by artificial, unilateral rules set forth by peddlers of political correctness, Americans will continue to be in more danger than they need to be. The American people deserve better than that, and they need to know exactly where this administration’s priorities lie with regard to keeping us safe.
Image courtesy of the talented folks at Cox & Forkum.