Legal Commentary

Mirandizing the Christmas Day Bomber ? Why?

By Paul Cassell

Over at Crime and Consequences, former federal prosecutor Bill Otis has this insightful analysis about the interrogation of the Christmas day bomber, who reportedly was given Miranda warnings and then stopped providing useful information shortly thereafter.  Otis quotes the Washington Post?s editorial on the subject, which attacks the administration as follows:  

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.

Otis goes on to argue, quite persuasively to my mind, that the failure here was not a one-time, bureaucratic screw-up, but rather a larger strategic 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.  The administration?s policy is not the nuanced approach the Post takes it to be.  It is  wishful thinking masquerading as a nuanced approach.

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.

Otis concludes by suggesting that this mistake is retrievable.  Quoting Scott Johnson, Otis urges the Adminstration to get Abdulmutallab out of the civil justice system, so that further questioning can be pursued:

The United States Attorney can dismiss the indictment against Abdulmutallab and turn Abdulmutallab over to the armed forces of the United States. I see no reason why Abdulmutallab can?t be detained as an enemy combatant available for questioning as the president sees fit. Unless I?m missing something, it?s not too late to try to rectify the mistake.

This seems like perfectly sensible advice to me.  Whatever one thinks about the ultimate place of trial for Abdulmutallab (civlian vs. military court, for example), the best place for obtaining information is clearly not to the civil justice system. 

Full post as published by The Volokh Conspiracy on January 25, 2010 (boomark / email).