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An army of political pundits is crying foul over the transfer of Umar Farouk Abdulmutallab to the federal criminal court system.
Transfer to the federal courts is a sure-fire way of "not making terrorists talk," The Wall Street Journal thundered today in an editorial, echoing similar sentiments expressed by Pat Buchanan, Tom Ridge, and The Weekly Standard recently. The editorial goes on to urge the administration not to charge future terrorists in the federal court system because it provides them with "a lawyer and all the legal protections against cooperating with U.S. interrogators."
The editors at the Journal seem to believe that once the dreaded "L" word is invoked, there is nothing U.S. interrogators can do but throw up their hands and deliver any would-be terrorist to his counsel of choice. This is a stunning misunderstanding of the way the criminal justice system operates.
U.S. interrogators have a wide array of "approaches" they can use to try to induce someone like Abdulmutallab to talk, whether he is being held at Guantanamo or in Miami. They can’t beat him up. (We have been down that road.) But they can question him without first Mirandizing him ("you have the right to remain silent" etc.) and they don’t have to put him in touch with an attorney immediately.
"Once someone is in custody, Miranda is only required if you want to introduce results of the interrogation into evidence at trial," explained my colleague Gabor Rona, an expert on prosecuting terrorists in federal courts. "In this case, they don’t need his confession – there’s more than enough other evidence."
So for intelligence purposes, interrogators can question Abdulmutallab at length no matter where his case is ultimately tried. The results of those interrogations can be used to catch other bad guys and stop other plots from unfolding; what is learned from this questioning, in most cases, can not be introduced in court as evidence.
Fear not, readers of the Wall Street Journal editorial page! We are no less safe because of the decision to try Abdulmutallab in federal court.
David Danzig is the Deputy Program Director at Human Rights First.
64 Comments
Jesus fucking Christ. In law school, I took criminal law, constitutional law, and advanced criminal procedure. From great professors. Plus a bunch of other courses.
I’m a goddamn tax lawyer, but I know what you describe is wrong.
What do we stand to lose by Mirandizing the Nigerian? We stand to lose the opportunity any prosecution of him gets thrown out on a due process technicality a la the Blackwater Nussour Square Massacre case.
Realistically any attorney he gets will tell him cooperation is his best hope to avoid a life sentence.
Said attorney will then begin negotiating with prosecution to get a recommendation for lessor sentence in return for specific cooperation.
Intelligence agencies will likely ignore attorney client privilege and surveil his conferences with his attorney. This information wouldn’t be shared with prosecuting attorneys.
The shoe bomber was tried in Federal Court by the leading purveyors of rightwing whining… Bush and Cheney. Amazingly enough the republic survived that mis-step. It barely survived their reign of terror and error in every other way however.
According to Robert Gibbs, the Orahama administration has already gotten valuable information from Abdulmutallab.
The “American Taliban” John Walker Lindh was tried in US courts. And is serving in a US prison on US soil.
I think the fearful among us need a magic talisman they can hold onto as they repeat their daily rota of “terrah terrah terrah”. Maybe a binky, or a blankie.
but lordie, we miss out on the opportunity to torture him and please good ol’ liz and dick!
Why the listed bedwetters are given any teevee time at all boggles the mind.
Gee, right-wing pundits, why stop there? Why not get rid of the entire judicial system and send all accused people directly to a torture chamber in – where dose the CIA send people, Romania? Wouldn’t that be the logical extension of your blather?
Wait. What’s that you say? That might include white-collar criminals such as members of Congress? Good guys like Bernie Madoff wouldn’t be able to demand incarceration in a Kosher prison?
Gosh, we mustn’t offend the wealthy. They might have a tantrum and attempt to dispose of the Constitution altogether. Oops. Too late.
You are a blithering *****. The Nissoor Square dismissal had nothing to do with Miranda. In fact, had those suspects been Mirandized instead of subjected to the compelled Garrity letter process, they would have been prosecutable and convicted. Do not spew outright lies to the people of this blog.
Mod note: Now be nice.
Lindh’s lawyer was smart enough to know that Lindh, a kind of jerky lost soul, would be the scapegoat for 9/11, and given the practicalities of the matter, 20 years was the best bargain they could reach. There was never a trial, and what happened to Lindh was far beyond any legal procedure. It was ALL political. And a travesty of justice, since Lindh never knowingly did anything against the U.S.
Silly you. There is no such thing as white-collar criminals. The ones you would incorrectly characterize thusly are just smart souls waiting for their just govt bailout.
Think that’s exactly what’s happened, excepting my 12.
Silly you, bmaz, the reality-based world counts for nothing any more.
I think that Seymour is saying not Mirandizing Blackwater made prosecution more difficult.
He’s going to get a life sentence. This guy will never get out of jail.
Sentence first. Then …
Uh, perhaps you misunderstood, its not clear, the source of your rage at me. I certainly wasn’t suggesting that Miranda rights specifically (as opposed to legal technicalities) got the Blackwater murderers off on a bullshit technicality. In fact, about an hour ago, I just got through bemoaning this case in a letter to the editor at The Nation where Scahill is publishing.
wmd1961 January 6th, 2010 at 4:38 pm
Correct.
Yes, I’d like it to go by the rules, too. Perhaps this wasn’t clear.
If so, then I stand corrected and apologize.
How can we really be safe if we have to wait for them to be accused?
Then I owe you an apology; and hereby give the same.
Um, no, wasn’t clear at all. Taking your modification.
The guy wont get out of prison, if he ever gets there. I think seymour is a realist.
So who’s gonna take me on that what happened to Lindh was entirely unfair?
bmaz, eCAHNomics, et al: assuredly my communication skills must have failed me terribly, sorry to have caused pain. To clarify: I want this SOB lawfully and regularly put through our fully-functioning civilian legal system and stuffed humanely into a supermax as an LWOP until they carry him out in a body bag after natural causes take over. The greatest punishment for this half-assed incompetent idiot is imprisonment but the mercy he would never shown his victims had he been actually capable of success.
Got that. Just pointing out procedure.
This was all I intended. I’ll leave off now as I have something like 5 comments in a row here.
it was a travesty. i never understood what crime he committed.
so then the negotiation is life sentence or death penalty (McVeigh was executed for successful terrorism, but it isn’t clear to me that attempted terrorist acts are ineligible for death penalty).
Not possible, since supermax, by definition, is torture.
Oh god which “procedure”. they are changing it weekly.
Shame on you. You were supposed to type that John Walker Lindh was the worst human to ever show up on the face of the earth. /s
Thanks. Just what I thought.
Silly me. I was referring to an era in hypothetical U.S. history when we fantacized there was really a “rule of law.”
Here’s a great take on John Walker.
supermax would be torture anywhere but in america. our exceptional nature magically transforms it into not torture. the same way cutting taxes for the rich and tripling defense spending magicaly makes one “fiscally conservative”.
G0t it.
Thanks.
Despite my general bleeding heart tendencies, I have trouble feeling sorry for folks as naive as John Walker Lindh. But that’s my problem. He didn’t do anything to deserve 20 years in a U.S. jail as near as I can tell.
Tell me more …
Not clear what negotiation you refer to, but I oppose the institutionalized death penalty in any case whatsoever, even if there are people who do things that on an individual moral basis justify taking their lives.
Incarceration, “defense” spending, and tax policy are all dysfunctional in America, but are assuredly incomparable to each other.
Without links, unless you insist, in which case, I’ll have to delay your satisfaction until tomorrow, when my recollection will be clearer.
As I understand it, supermax involves something like 23/7 in solitary. No exercise, no human contact. Psychyologically, humans being a herd animal, crazy making.
Wrong question. The question is what do we gain? Faith in our Justice system? Self-respect? Comfort in knowing that we ourselves will never become the victims of our own government unjustly?
Usually defense will negotiate with prosecution prior to pleading. Given the physical evidence I can’t see a defense attorney saying go to trial.
I oppose the death penalty myself, but I believe federal terrorism statutes could make it applicable in this case. So this could be a place where the defense could say – we’ll give you more information about training, other possible attacks and persons of interest in exchange for not asking for the death penalty.
I’d also expect NSA/DCI to ignore attorney client privilege and bug conference rooms where defense learns what info could be used for such negotiation.
No on all the Qs you mention.
There would definitely have to be a security-based argument for such a form of incarceration, as it would be very inhumane. Certainly in the case of the crotch-bomber, the only person he actually hurt was himself, and the only property he hurt was his pants and airplane seat, so what he did would not deserve that sort of incarceration.
Perhaps I should think more carefully before imagining this person deserving a life sentence. He was an attempted mass murderer. And he was trying to upset political order with his act. That’s very bad. But given that real damage to person was only to himself, and real damage to property was limited to costs incurred by airline passengers and airline, it may be that fundamentally he doesn’t deserve LWOP.
Yes. Like those Blackwater assassins that were recently acquitted by a Federal judge on a ‘technicality’ — in spite of the fact that, yea verily and true story, they DID indeed murder innocent Iraqis. Where’s the outrage on THAT one? Law is law. It’s flawed. People are flawed. But a world without law? No, thank you. The Nigerian should have no less rights than the Blackwater assholes.
I understand now what you meant.
Frankly, I find the acts of the Blackwater murderers to be far more shocking and terroristic than the crotch-bomber. The same would probably go to whichever “special operations forces” gunned down 8 Afghan kids in cold blood recently. Something tells me that these “special operations forces” aren’t so “special” that they can commit inhuman and unjustifiable acts that pragmatically threaten the security operations of the US in a war zone as well, with impunity.
It’s a terrible world, if you look into these dark places, ain’t it?
or an attempt to piss off U.S. enemies so that they escalate, allowing (like Israel) an opportunity for the U.S, to kill the shit out of them.
Yep. I have an overwhelming desire for a cup of hot chocolate and to curl up and watch Sesame street with my kids. I would, too, if they weren’t over 20.
Nothing better than giving your enemies a reason to attack you if you are politically unable to initiate your own attack on them!
I am winding down some work affairs today, and then I am going for a glass of wine or beer. Plus, I will feed my fish. It’s real pretty out here in Seattle right now, we are in the heart of the dark season, it’s pitch black by 5 PM, too pretty to miss. I’ll have to dream some hopeful dreams that things will simply get better in the world while I enjoy the season.
I’m sure I’ll see all of you around FDL, a site I am new to but well-impressed with. Moron quotient is pleasingly low here.
deleting, having read more posts.
Never mind!
LOL! That’s thinking outside the box! Let’s arrest everyone else, torture them all, execute every one of them and declare ourselves safe!
Hmmm… I seem to have read that somewhere before. Was it in the intro to Cheney’s book?
This comment is a process comment, not specific to this thread; indeed this discussion was quite civil. But, I have been struck by the vehemence, anger, vindictiveness, punitiveness, and indeed, vengeance-seeking I have seen posted the last few days on FDL, pretty much, it seems, all by folk who apparently have never suffered a grievous loss.
Wishing the idiot who failed to spend the rest of his life in a super max for what he might have done, is nothing less than vengeance.
If one opposes the death penalty, there can be no exceptions.
It’s quite amusing how many people clamor for criminalizing the medical procedure known as abortion, yet clamor for the death of someone at the hands of the state. No government, anywhere, should be entrusted with life-or-death decisions for its people. The innocent will die at their hands, and that, my friends (as McCain might say), is what this nation repudiated in 1945.
There is a fine line between the state executing people for committing crimes, and executing them because the public has been ginned up to believe they are evil. As our legislators have proven altogether irresponsible in the latter regard, the death penalty should be taken away from them once and for all.
As far as this pathetic person is concerned, he blew his own genitals up, he’s proven himself a fool, and will be forever known as the underwear bomber. Throwing him under the “security” bus by executing him or jailing him for life wouldn’t make us any safer; it would just prove how easily the public can be manipulated by an authoritarian state and the media lap-dogs who serve it.
Bravo!
It’s not like getting this guy to talk would have been a problem in any case. This is someone who compromised operational security rather seriously when he told his family what he was up to.
Not that he has anything useful to tell. Whatever organization put him up to this would not, unless it were made up of people as emotionally disturbed and incompetent as the suspect, have let him know anything of any intelligence value. He had approximately zero chance of setting off PETN by lighting it on fire, so if this organization had anyone with even a passing familiarity with high explosives, they knew that he would be captured and not killed, at least not by any explosion that he set off. Even had they imagined that this plan had any chance of working, normally prudent people would have allowed for his being captured before he had his chance, and not let him know anything whose value would not expire by the time of his attempt, and therefore risk of capture.
This “attempt” was so laughably not even close to being remotely capable of bringing down the aircraft (even if you could detonate PETN by setting it on fire, 3oz of it exploded on your lap, as opposed to shaped into a charge attached to the hull, would not make any hole in that hull, much less one big enough to bring the plane down), that you have to wonder what it represents. It is possible that whatever organization sent this cholo actually is so terminally incompetent that they thought this plan would work. If that’s the case they’re not any threat. They actually make us safer by stearing potential suicide bomber recruits into impossibly incompetent plots that stand no chance of working. If, on the other hand, these folks are at all competent, they set this guy up to be captured. Perhaps they would do such a thing because that’s their way of getting rid of people who show up on their doorstep eager to be used, but who are too unreliable, from inherent dimness, or emotional problems, to be useful in a real plot. Spilling his guts to his father, who in turn went straight to the CIA, would, if they knew about it, have confirmed that this cholo was unusable. So they get rid of these problem children by sending them out, like Reid and Padilla before, on lunatic missions that have no chance of success, but do create fear and terror among the easily terrorized.
I oppose the death penalty with no exceptions. The state should not be taking life in retribution for any crime.
I was describing how plea bargaining works in the context of how more information could be gained from the underpants bomber. I don’t agree with the sentencing options available, yet there they are. A defense attorney is obligated to get the best outcome possible, if the prosecution is seeking death then offering information in exchange for a life sentence is doing a good job defending the underpants bomber.
You see already the Republican mouths have convinced many people that this is wrong.
Yet anyone with common sense, or knowledge of the law, or the Constitution, or even right and wrong knows the Republican arguments are just plain wrong.
After seeing what the Republicans have done to this Country, it is truly amazing that people still agree with them.
irmember54, unfortunately the psychology is clear. It goes back to Leon Festinger’s original work that resulted in the paradigm of cognitive dissonance. When you have authoritarian individuals who are proved wrong, because fundamentally they are certain they are right, what they do is reframe the failure to conform with their views. Everyone on this thread needs to read The Psychology of Conservatism, edited by G.D. Wilson. Yes, it was published in 1973, but it is even more relevant now to understanding the opposition than it was then.
This guy was trying to die. So giving him constitutional rights might mean something to us but not to him. Unless with time he cools his fanatically beliefs.
One thing that is totally insane, except most us us are part of the same insanity, is that you can capital punish a suicide bomber. That is unless he someday decides he doesn’t want to die.
By the way in Spain an agent died and several were wounded when several al Qaeda members mostly successfully blew themselves up rather than be captured. Since the so-called top leaders the US claims it has at Guantanamo aren’t constantly trying to commit suicide rather than talk. I doubt the US has the real members the US thinks it has.
Why isn’t everyone very scared, both of them killing us and also destroying our Democratic traditions,
See, http://seminal.firedoglake.com/diary/22693
After the Soviets exploded the H-bomb in 1953, US foreign policy moved ahead with what George Kennan called
. At the time, he held a more benevolent vision of bringing the Soviets eventually to something close to European democracy. As the Cold War proceeded, however, the balance of terror of mutually assured destruction forced the two superpowers to get behind preventing nuclear proliferation as having a bomb was a great equalizer — any little country with a bomb suddenly had a much clout as the five UN Security Council members that already had bombs. Of course Israel, Pakistan and India, knowing this, never signed onto the non-proliferation treaty. North Korea rules the headlines intermittently.
Now we see this same equalizer phenomenon unfolding in micro-scale. We are enjoined to “contain” terrorism while promoting democracy in countries that produce terrorists. The haves of the developed world, in turn, are seen as dictating to the have-nots, so any guy with a bomb and an agenda gets global attention.
I would look at the Abdulmutallab case in this bigger perspective. Unfortunately, Miranda, thanks to American television script-writers (Book him, Joe, and read him his rights), is that peculiar fragment of criminal procedure that is universally known, even by seven-year-olds.