What Do We Lose by Mirandizing Nigerian Who Sought to Blow Up Plane on Christmas Day?

By David Danzig,

crossposted from Huffington Post

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.


Published on January 7, 2010


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