Legal Commentary

More Criticism of Mirandizing the Christmas Day Bomber

By Paul Cassell

Yesterday I expressed my concern about the decision to Mirandize the Christmas day bomber.  Today?s Wall Street Journal has this excellent editorial forcefully criticizing the Administration?s decision to do so.  Here?s an excerpt:

On ?Fox News Sunday,? Chris Wallace asked White House Press Secretary Robert Gibbs whether the President was told that Abdulmutallab was Mirandized after only 50 minutes of interrogation. Mr. Gibbs said the decision was made ?by the Justice Department and the FBI? and insisted they got ?valuable intelligence.?

This is awful. This talky terrorist should have been questioned for 50 hours, not 50 minutes. More pointedly, Abdulmutallab should not have been questioned by local G-men concerned principally with getting a conviction in court. He should have been interrogated by agents who know enough about the current state of al Qaeda to know what to ask, what names or locations to listen for, and what answers to follow up. The urgent matter is deterring future plots, not getting Abdulmutallab behind bars.

It gets worse. Appearing before Congress last week, FBI Director Robert Mueller admitted that the HIG group essentially doesn?t even exist yet. They haven?t pulled it together.

Recall that in August Mr. Obama announced the intention to create a multi-agency HIG, transferring lead responsibility for interrogations away from the CIA and into the FBI, with techniques limited to the Army Field Manual.

And worse. As a Wall Street Journal account of last week?s Senate Judiciary hearings noted, the HIG team is intended only for interrogations overseas; the Administration hasn?t decided whether to use it domestically. In any event, that?s moot until there is an HIG team.

As the facts are emerging, it appears that this was a mistake of the first order.  Abdulmutallab admitted he was from al Qaeda and was speaking ?openly.?  But then he was given a break and given Miranda warnings, after which he apparently stopped giving useful information.

It is instructive to compare the solicitude for Abdulmutallab?s Miranda rights with this headline story  in today?s news:  ?Report: Al-Qaeda Aims to Hit U.S. with WMDs:  Huge Attack is Top Strategic Goal, Not ?Empty Rhetoric,? Ex-CIA Official Says.?  Would Abdulmutallab have given us useful leads to pursue in stopping such an attack had he been questioned further rather than Mirandized?  Unfortunately, we will never know.

Full post as published by The Volokh Conspiracy on January 26, 2010 (boomark / email).