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Citizen or Not, Terror Suspects Are Not Guaranteed Miranda Rights

Several legal and security experts explain to PJM why national security must trump prosecutorial success.

by
Elise Cooper

Bio

May 28, 2010 - 12:00 am

You have the right to remain silent. Anything you say can and will be used against you in a court of law.

For national security purposes, apprehended terrorists should not be read this statement of their rights. Al-Qaeda and the Taliban are making concerted efforts to radicalize American citizens, and knowing this, a balance must be struck between civil liberties and national security interests. From former FBI agent Craig Dotlo:

We are dealing with a new kind of threat that we never faced before, and have no rules and regulations to fall back upon. This is so different.

The underwear bomber, Umar Farouk Abdulmutallab, was read his Miranda rights less than an hour after his capture, which detrimentally affected American national security. Says former CIA Director Michael Hayden:

You don’t Mirandize in less than an hour. We don’t have many terrorists that we can talk to and gain information from. Mirandizing is about prosecution, whereas intelligence is about information. We are not doing this for the purpose of prosecution; we are doing this for the purpose of information. It is all about the prevention of the next attack.

American citizens that are suspected terrorists — such as the Times Square bomber — should not be given Miranda rights until the interrogators are reasonably certain that all actionable intelligence has been gained. From Andrew McCarthy, the lead prosecutor in the first World Trade Center bombing trial and author of the soon-to-be-released The Grand Jihad: “If a person happens to be a U.S. citizen, it makes no difference. If he is operating at a high enough level on behalf of our wartime, terrorist enemies, it is more important to get intelligence from him than to get him convicted. He can always be handed over to civilian authorities later for a trial.”

Furthermore, all those interviewed pointed out that Miranda rights are more of a policy question than a constitutional one. The Fifth Amendment states that someone cannot be a witness against himself. This means captured terrorists who are American citizens do not have to be read their Miranda rights if the evidence is used solely to gain information rather than for prosecution.

If there is not enough evidence to obtain a conviction, the Supreme Court, in the Hamdi case, ruled that American citizens can be held as enemy combatants. A former high-ranking CIA official noted to PJM that preventing the next attack is the top priority, not obtaining a conviction:  ”In a perfect world, it would be nice to obtain both.”

John Yoo, former Department of Justice attorney in the Bush administration and author of Crisis and Command, pointed out:

[Americans must not] turn terrorism into a criminal problem. They should not see everything as a criminal justice problem but rather as a war.

Frances Townsend, former Bush homeland security adviser, commented regarding those Americans who have attempted or encouraged terrorist acts:

[They] crossed the threshold. It’s tantamount to an act of treason. It changes the gravity of the crime and the dynamics of how they should be treated.

President Obama has authorized American citizen Anwar al-Awlaki to be the focus of a targeted Predator drone killing. This is extremely rare, if not unprecedented — as a U.S. citizen, he has ultimately been given a death sentence without a trial, even one in absentia. However, this is well justified. Al-Awlaki, an extremist Muslim cleric, is widely referred to as inspiring the Fort Hood attacker, the underwear bomber, and the Times Square bomber. America is at war, and some American citizens are aligning themselves with the enemy. Yoo argues that deadly force can and should be used to stop them:

A citizen that joins the enemy does not get a force field around them. There should not be a specific privilege or exemption from the rules of war just because they are citizens.

Both Andrew McCarthy and Michael Hayden argue that the president has constitutional rights as commander in chief to determine that an American can be viewed as an enemy combatant, and what should be done to him. Americans must be willing to allow for constitutional amendments to be limited. They should not think of them as absolute during the war on terror.

National security has to be America’s most important priority. The phrase “the Constitution is not a suicide pact” expresses the belief that during this extraordinary time in America’s history, constitutional restrictions on governmental power must give way to urgent practical needs. Former CIA Director Hayden summarized the need to balance civil liberties with the need to prevent a national security threat:

There is a need to protect life, liberty, and the pursuit of happiness. This calls for very hard choices.

The author is a freelance writer focusing on national security issues.
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