Distinguished members of the bar, right and left, cast brickbats my way for labeling as the “Gitmo Bar” their friends – other distinguished members of our self-congratulatory profession –who volunteered their services in order to file lawsuits against the American people on behalf of our jihadist enemies in wartime. Later, when President Obama came to office, the same sort of caterwauling occurred in response to what I thought was the commonsense point that we oughtn’t want counterterrorism policy to be made by members of the Lawyer Left who had volunteered to work for the enemy and had labored assiduously to erode the law-of-war approach to counterterrorism (i.e., the Bush approach) – such lawyers having by then been recruited to serve in top policymaking posts in the Justice Department and throughout the Obama administration.
We have been seeing the wages of government-by-Gitmo Bar for over four years now, but maybe never as starkly as in the last few days.
It has now been reported by Fox’s Megyn Kelly that the FBI’s interrogation of accused Boston Marathon bomber Dzhokhar Tsarnaev was short-circuited when the Justice Department arranged for him to be given a presentment hearing in the hospital.
In point of fact, it was not the hearing that caused the suspension of vital intelligence-gathering. It was the Obama Justice Department’s decision over the weekend immediately to file a criminal charge against Tsarnaev. Once that was done, the presentment hearing was inevitable. It is required by Rule 5 of the federal rules of criminal procedure. An arrested person must be brought before the nearest available magistrate. The purpose of the proceeding is to get him out of the clutches of law enforcement, have a neutral judicial officer advise him of what he’s been charged with, make certain that he has counsel assigned, and – most significantly – ensure that he knows he is under no obligation to make statements to the police and that, if he has already made some statements, he may stop.
From a national security standpoint, there was no good reason to file a criminal charge so soon and thus trigger procedures that, as everyone involved in the decision well knew, would stop the interrogation. The only reason to do it is political: The Obama administration is philosophically hostile to the law-of-war counterterrorism paradigm. It is determined to regard every terrorist as a criminal defendant rather than an enemy combatant – even if there may be evidence connecting the detained terrorist to our wartime enemies and thus justifying, at least temporarily, an enemy-combatant designation that would allow interrogation to continue for intelligence purposes.
Therefore, in a palpable effort to end any public debate over Tsarnaev’s treatment, and to divert public attention away from what appear to be appalling lapses by the relevant agencies in the months since Tamerlan Tsarnaev got on their radar screen over a year before last week’s terror spree, the administration ran into court.
With a criminal complaint filed, the administration calculated, Dzhokhar Tsarnaev is a criminal defendant – no more need to talk about whether he should be a military detainee. And with the civilian prosecution commenced, the public attention could be shifted from the administration’s investigative lapses to the terrorist’s court proceedings.
But there is always a price to be paid. To start the civilian due process was to guarantee the premature end of the national-security interrogation. And on that score, the administration’s argument that the public safety exception to Miranda is an adequate substitute for the open-ended interrogation permitted under military detention is specious.
The administration would have you believe the public safety exception is a settled doctrine with bright-line rules that permit expansive post-arrest questioning without Miranda warnings or counsel. That is preposterous.
First, like most judge-made law, the public safety exception is construed differently in different judicial circuits. In some, the exception ends – and thus the duty to give Miranda’s advice of rights kicks in – the moment the security threat triggering the exception has been erased. So, for example, even if your arrestee is a terrorist, once you have him in cuffs and are satisfied that he is no threat to the arresting officer – i.e., that he is not armed and there are no weapons in the immediate vicinity – the threat is over and you have to advise him of his rights.
Other courts will give more leeway. They reason that if the person arrested is in a position to cause or command violence, the exception should be extended until he is no longer in a position to do that. So, for example, if there was a legitimate reason to suspect that the Tsarnaevs had planted other bombs around Boston, there might be some license to probe that possibility and conduct pre-Miranda questioning until it was answered. But again, once it is answered, the threat is over and the warnings must be given.
Here, a policy point must be stressed – and one would think you’d know this from the Lawyer Left so you wouldn’t have to hear it from the right-wing nut-job former-prosecutor-type. The point of the public safety exception to Miranda is not to give the police an advantage in building a case against the detainee; it is to address any immediate threat to public safety. Consequently, it is not an avenue for conducting a comprehensive intelligence-seeking interrogation of a suspect. The questioning is supposed to be narrowly tailored to the safety threat that triggers the exception.
The public safety exception is no substitute for an open-ended intelligence investigation for national security purposes: to drill down into what ties the Tsarnaevs may have had to al Qaeda-connected jihadist groups in Dagestan and Chechnya; to determine whether there are any more bombs; to find out if the brothers had access to a broader support network in the U.S.; etc.
That kind of investigation is not possible in the civilian criminal justice system. Once you charge someone, the case and the procedural rights of the terrorist take precedence over the public’s interest in quickly obtaining national-defense information to protect American lives.
In an administration being steered by the Gitmo Bar, that has always been the policy choice. Maybe it will finally dawn on people that putting our security in the hands of lawyers who volunteer their services to our terrorist enemies in wartime was not such a great idea.