AG Eric Holder has released a letter to a group of Senators wanting an explanation for, among other things, the decision to Mirandize the Christmas Day bomber. I’ve read it quickly and guess I’d describe it as doubling down on the administration’s actions, rather than walking them back. Holder takes responsibility for the decision:
I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government ...
The letter goes on to offer a defense of the criminal justice process as being a form of national security, and defends the idea that law enforcement questioning can produce important intelligence. It ends with a statement that the United States is at war, and then re-states the core argument. That core argument is that since the country is at war, the tools of law enforcement and criminal justice – including those for questioning suspects, including those that have been Mirandized – are part of the arsenal of tools available. Not to use them, or to take them off the table, would be as much a mistake as not availing ourselves of the weapons of war.
I haven’t quoted directly, as I’m having trouble making the fonts work correctly, but anyway, it’s at the last section of the letter linked above. I can’t say as this is going to mollify critics; it certainly doesn’t convince me.
The section on the presumably great ways in which questioning of suspects has provided such great intelligence fails to address a couple of obvious questions. The point of offering suspects the Miranda warning and associated rights is not in order to persuade them to talk, but in order to make sure they know they don’t have to and, if they have much in the way of brains, won’t.
As Abdulmutallab didn’t, once advised of his rights. That he is supposedly talking now is, well, a little late, and one wonders, among many other things, whether anyone has suggested to him that he might want to do so, if he doesn’t want to be converted into a Guantanamo detainee (perhaps not; the suggestion might violate some ethical thing, I don’t know). One wonders how the lawyer negotiations get conducted at that initial point when the lawyer first arrives on the scene, and there is this super-immediate concern about national security. If I’m his lawyer, I presumably say to the Feds, well, you know, it is possible – I don’t know for sure, of course – that my client might know something important, maybe really, really important, I don’t know of course, but I need to know what you’re going to offer.
Do we think that maybe using the model of ordinary criminal justice questioning and plea bargaining and lawyer negotiation is such a smart idea at a moment in which we have to wonder whether, yes indeed, maybe this guy really does know something crucial? Talk about maximum hold-up value ...
I’m all in favor of such criminal justice rights for our ordinary criminals – and am not silly enough to believe that people like me want them because they will cause people to talk. It’s in order that in our ordinary criminal justice system, people will know they don’t have to and, frankly, won’t without advice from an attorney. I like that for ordinary criminal suspects, but that’s because it’s a limitation. AG Holder makes it sound as though it’s a great way to get them to talk. If it were, I’d think there was something wrong with our existing criminal justice system. It’s a feature of our ordinary criminal justice system; a bug if we think it’s supposed to produce actionable intelligence quickly. DOJ seems to think it’s a feature all the way around; this is unlikely at best.
We Mirandized him ... because otherwise we’d be depriving ourselves of an important tool for gaining actionable intelligence? By urging him not to talk? Really? That appears to be the AG’s argument, on this as on the general point about using the criminal justice system. If we don’t use a tool that is mostly, by comparison to our other possibilities, about limiting our access to him, we are somehow hurting ourselves by not using our full repertoire.
Well, it’s an argument, I suppose. An admirable example, I also suppose, of how to make a legal silk purse from a sow’s ear. I sure hope whoever got stuck writing it at DOJ doesn’t take it too seriously. The whole letter sounds as though it were cut and pasted from some human rights advocacy report, I’m afraid.