Posts Tagged ‘ Eric Holder ’

Miranda Rights, the Public Safety Exception and Congress

Wednesday, May 12th, 2010
Matthew Dahl



Matt Dahl is a judicial clerk in Virginia and writes about national security law on his blog. The views expressed here are his own.

by Matthew Dahl

The arrest of Faisal Shahzad has revitalized the conversation about the legal rights of terrorism suspects apprehended in the U.S. In February, I wrote that a public safety exception to ordinary Miranda procedures exists, and called it a useful tool in terrorism cases because it could allow for interrogation of terrorism suspects for a reasonable period of time before they are read their Miranda rights, as happened in the case of the Christmas Day bomber, Umar Farouk Abdulmutallab.

The incident in Times Square has given even more momentum to the idea of Miranda-less interrogations. On Sunday, Attorney General Holder came out and said that he wants Congress to pass a law specifically allowing interrogations without Miranda warnings in international terrorism cases. Such a law would obviate the need for law enforcement to rely on the current public safety exception.

Holder’s proposal is unique. The public safety exception is not the result of congressional action, but rather was created by a 1984 U.S. Supreme Court decision. In fact, all exceptions to Miranda rights under federal law come from court decisions and not from Congress. The question is this: Is it necessary for Congress to create a Miranda exception for terrorist suspects, or is the existing public safety exception enough? The congressional approach has several pros and cons.

The major benefit to Congress passing a law that explicitly creates a Miranda exception would be the specificity it would provide. Currently, law enforcement officials decide whether to invoke the public safety exception depending on whether they think a risk to public safety exists. Whether or not an officer’s belief is legitimate is determined on a case-by-case basis in court. Congress could make a law that lays out specific timeframes and circumstances under which a terrorist suspect could be interrogated without Miranda rights. Law enforcement officials would benefit greatly from knowing exactly what kinds of constraints exist.

Another benefit would be that, as long as law enforcement acted within the bounds of the statute, prosecutors would be more easily able to justify Miranda-less interrogation. As it is now, if a terrorist’s defense attorney challenges his client’s interrogation, prosecutors must show that law enforcement acted out of a legitimate concern for public safety. That process can be significantly more difficult and time-consuming than if prosecutors could simply point to a statute authorizing interrogation without Miranda.

Conversely, the existing exception’s major benefit could be its flexibility. The exception was created without specific constraints because the Supreme Court knew that it could not foresee all possible scenarios in which the exception could be applied. Similarly, Congress will not be able to foresee all possible terrorism scenarios. This could lead to a situation in which Congress creates a law that gives law enforcement less latitude than they might receive under the current exception.

It’s likely that Congress will try to pass a law that allows for a terrorist suspect to be interrogated for 48-72 hours, or even more, without being read his Miranda rights. Interrogations of such length would probably not be allowed under the existing exception. Should Congress authorize long interrogations without Miranda, expect a significant backlash from civil liberties advocates and some elected officials. Moreover, a statute granting law enforcement a great deal of flexibility could run the risk of being overturned in the courts. Stay tuned.

Faisal Shahzad’s Relationship to the Pakistani Taliban

Tuesday, May 11th, 2010
Jim Arkedis



Jim Arkedis is the director of PPI's National Security Project.

by Jim Arkedis

It was the Pakistani Taliban! Yes, yes, of course. They sat in their evil lair and activated one of their top sleeper agents to infiltrate American territory with a devilish plan to thwack hundreds of unsuspecting victims. And they monitored it all from their giant TV screens in real time, having tapped into NYPD’s closed-circuit television. Should visual monitoring fail, robo-operative Faisal Shahzad would simply activate the GPS tracking system linked to the Pakistani Taliban’s satellite via the computer chip inserted behind his ear.

Or not.

As Eric Holder and Hillary Clinton all took to the Sunday shows yesterday to proclaim Faisal Shahzad’s “connection” to the Pakistani Taliban, it struck me that such rhetoric often conveys, falsely, the sense of an ironclad connection between the operative and his terrorist mentors.

Secretary Clinton deserves credit for her answer on 60 Minutes yesterday, when she said, “There are connections. Exactly what they are, how deep they are, how long they’ve lasted, whether this was an operation encouraged or directed … those are questions still in the process of being sorted out.”

She’s right, of course. But my worry is that people stop paying attention after that first sentence.

I think I have a pretty good idea of Faisal Shahzad’s relationship to the Pakistani Taliban. My inkling is based on not a single piece of intelligence reporting as it pertains to this case, but rather my experience investigating the bombings in Madrid (2004) and London (2005). Both those operations featured “home-grown” operatives — locals who were “clean” (i.e., had all the proper paperwork to access the target country) and who had explicit or nebulous associations with al Qaeda in Afghanistan or Pakistan. The Madrid bomber’s connection to AQ has always been slightly murkier, but the London bombers were known to have traveled to Pakistan on prior occasions.

The Metamorphosis

Based on London and Madrid, here’s an attempted reconstruction of how Faisal Shahzad went from being a nice young father in the Connecticut ‘burbs to an attempted mass murderer:

First, the part we don’t exactly know: What made him travel to Pakistan with the intent to hook up with the Taliban? While a lot of bad stuff had happened to Shahzad over the course of the previous months — quitting his job and losing his house among them — we don’t know what mechanism drove him from “depressed” to “seeking revenge.” It could have been a chat room; it could have been secret meetings at a mosque; it could have been one influential mentor, as was the case with the first London cell in the north of England (the cell met regularly with an Islamic extremist in the backroom of a bookstore before traveling to Pakistan).

However, we do know that it was one of these (or something like it). Faisal went from having a bad run in life to actively seeking revenge. We know that someone — whom we’ll call his “mentor” — got him to translate his frustration into action and was well-connected enough to link up Shahzad with Taliban elements in Pakistan.

Next, as he’d done several times, Shahzad traveled to Pakistan. Most of his previous trips were likely family-related. This one might have been, as well. But at some point, Shahzad’s mentor told his contacts in the Pakistani Taliban that he had an American passport-holding recruit who was open to learning more. What’s more, Shahzad’s mentor must have been highly trusted in Pakistan because Taliban elements view U.S.-based operative as spies. That the mentor could vouch for Shahzad’s legitimacy would have been critical.

The mentor would have given Shahzad contact information in Pakistan, but it would have likely been up to Shahzad to initiate contact with Pakistani Taliban.

Upon traveling to Pakistan, Shahzad obviously decided that he was interested in learning more. He got in touch with his mentor’s network, and agreed to spend a certain period of time — as few as a couple weeks, but up to several months — in the Pakistani wilderness with Taliban members. Travel records indicate that Faisal went to Karachi and then Peshawar, the Taliban hotbed where Shahzad likely jumped off the grid.

During his time in the Taliban camp, Faisal would have gone through Terrorism 101. He’d have been given physical training, religious indoctrination (which is critical to sustaining his commitment), bomb-making classes and likely small-arms instruction. If there was a group of students, they would have bonded and shored up their commitment to jihad in small group sessions where they solidified their hatred of America.

A Freelance Terrorist

Faisal would have received all of this training, but would likely not have been given a specific plan of attack. This is the changing model of terrorism today. No longer do al Qaeda masterminds sit deep in caves and dream up logistically complex plots akin to 9/11. Instead, it’s more likely that the Taliban would have provided him training, possibly some cash, and given Shahzad the autonomy to imagine and execute his own plot. That’s right — the Pakistani Taliban likely would have taught him, paid him, and told him, “Good luck with whatever you end up doing. Just do something.”

In today’s world of increasing counterterrorism capabilities, this model stands a significantly higher degree of success. By not weighing Faisal down with the who’s, what’s and when’s of an operation, logistics are simplified dramatically, thus decreasing the chances of intercepted communications or arrested operatives that could scuttle the whole shebang. Cost drops, too. And since the Taliban has been isolated, they wouldn’t have on-the-spot access to scout a potential attack site, and are therefore almost forced to cede control to local operatives.

Of course many of these operatives, Shahzad and the Underwear Bomber included, aren’t “professional terrorists” with years and years of extensive training and indoctrination. But the Pakistani Taliban now seems willing to give up operational control and experience in order to increase the chances of a successful attack, even if that attack is significantly smaller than before. And since politicians are ready to use terrorism to score political points, a small attack could potentially carry as great a weight as another 9/11.

In D.C., Public Defenders Aren’t Where the System Falls Short

Monday, March 29th, 2010
Jim Arkedis



Jim Arkedis is the director of PPI's National Security Project.

by Jim Arkedis

On this one, I stepped out of my comfort zone. While I normally write about national security, foreign policy, and the military, yesterday I placed an op-ed in the Washington Post about none of the above. Rather, the piece was about my experience as a “mentor” (a term that seems funny) to my friend, Tim Cofield. We met through a charity called the Welcome Home Reentry Program. As that title might suggest, Tim is an inmate in the D.C. jail, and has been for a good chunk of his life — 13 out of 54 years. The only upside to that is that he essentially missed the Bush years. But as of right now, he’s still there, despite being scheduled for release last Friday.

The point of my article is pretty simple — Tim keeps ending up in jail (he’s been convicted four times, by my count), but he’s not necessarily getting any better. Unless he gets high-quality and consistent mental health and substance abuse care, not to mention a stable place to live and a steady income, Tim is almost certainly going to find himself back in jail soon.

This is a difficult issue for politicians, particularly those on the state and local level who control budgets. Fearful of looking “soft on crime” (hello, California’s three strikes law), politicians promise to throw any transgressor behind bars without paying attention to the consequences. State budgets go bust, and overcrowded prisons are eventually emptied, even though prisoners’ behavioral patterns haven’t been altered.

Here’s an excerpt:

If all goes according to plan, my friend Tim Cofield will be a free man by the time you read this. He was scheduled to get out of the D.C. jail Friday. Despite having spent more than three months in an orange jumpsuit, Tim would probably disagree with Eric Holder’s February speech to the National Symposium on Indigent Defense, in which the attorney general called for more funding to fulfill Americans’ right to competent defense. While I’m sure Holder is correct that “in some parts of the country . . . basic public defender systems simply do not exist,” Tim — whom I mentor through the fantastic Welcome Home Reentry Program — would tell you D.C. public defenders are actually quite good.

In the District, money would be better used to improve post-release rehabilitation and mental health programs. Without better support for parolees, we cannot break a cycle that leads to the reconviction of two-thirds within three years. This astonishing statistic is due to many factors, but here are two big ones: According to the Bureau of Justice Statistics, 74 percent of inmates enter state prisons hooked on drugs or alcohol and 56 percent have a significant mental health problem. Tim checks both boxes.

[...]

We’re at a crucial point. Tim has probably (though not certainly) stayed clean in the prison’s rehab program. I visited him in jail, and he seemed clear-headed and resolved. He is being released into a halfway house that also serves as a drug treatment program. The quality of these programs varies wildly, but regardless, I know he needs much more than just rehab.

His chances to salvage any semblance of a productive life depend on a combination of high-quality substance counseling, consistent therapy and stable housing.

Read the entire thing here.

Progressives Need to Slam the Right With the Zazi Case

Tuesday, February 23rd, 2010
Jim Arkedis



Jim Arkedis is the director of PPI's National Security Project.

by Jim Arkedis

Najibullah Zazi pled guilty yesterday in what should be a major coup for the administration. Right now, they’re not exploiting it for all it’s worth.

First, some background: Zazi traveled from Colorado to New York with explosives in his car and the intention to detonate them in the New York subway, potentially killing hundreds of innocent Americans. The NYT is reporting that Zazi copped to it after DOJ pressured him into cooperation out of fear that the inquiry might widen to include other members of his family. As a part of the deal, prospectors believe he’ll prove a valuable source of information about his contacts in Pakistan, where he met with al Qaeda and learned to make the devices.

Though Zazi’s plea has been sealed by the judge, he has admitted to conspiracies to use weapons of mass destruction, to commit murder in a foreign country, and to provide material support for a terrorist organization. In exchange, he’ll reportedly be sentenced to a life term in a June 25th hearing. Leaving Zazi to anonymously rot in jail is a win-win for the USA in the worldwide PR battle with al Qaeda, too. Sentencing him to die denies terrorists the sickening prospect of using Zazi as a “martyr” in recruiting and financing propaganda. This is worth remembering when KSM’s sentencing comes around.

The case demonstrates that the intelligence community can partner with law enforcement agencies to provide swift, effective justice to those who would harm us. The American security apparatus “connected the dots” to prevent a major terrorist attack. What’s more, it shows that the Obama administration is committed to defeating terrorism and can apply the civilian justice system as part of that effort.

The bottom line is that this is an absolutely huge win for a sound, progressive worldview on national security. The good news is that Attorney General Eric Holder is out making the case. The bad news is that he’s making the case in the wrong way. Here’s a telling statement on the usefulness of the civilian court system from his press conference:

To take this tool [civilian courts] out of our hands, to denigrate this tool flies in the face of facts and is more about politics than it is about facts.

It’s a perfectly sound and correct argument. It’s also one that most Americans ignore.

It would be much more effective to frame the national security argument in terms of emotion, not wonkery. Americans want to hear that their country is strong, that we’re beating terrorism, and that we’re on the offensive in that fight. Using civilian courts shouldn’t be referred to as a “tool”; rather, the entire case should be framed as a “strong victory over those who are dedicated to killing us.”

Conservatives don’t care about facts. They fight these ideological battles on emotional grounds, and for decades their arguments have resonated more with Americans than progressive ones. I would rather have the AG preempting conservative attacks using the Zazi case by projecting an image of staunch, fist-pounding resolve to defend the country, not wonkishly responding to conservatives’ false assertions that civilian courts are weak.

Think I’m wrong? Look no farther than this WaPo/ABC poll that shows the only category that conservatives are “winning” on national security right now is the civilian courts vs. military courts argument, despite the civilian courts’ effectiveness in the Reid, Moussaoui, and, now, Zazi cases. Why? My hunch is that the emotional idea behind a military court simply projects a better image of strength, irrespective of the justice it may deliver.

Now is the time to go on the offensive. Progressives should use this very tangible example of progressive strength and smarts on national security and show that conservative approaches continue to be reckless. Or we could continue fighting this battle on conservatives’ terms and keep wasting our breath.