Blog of Rights

Keep Constitution Intact When Interrogating Terrorists

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 3:36pm

(Originally posted on Roll Call.)

Over the past two weeks, most Americans have applauded the FBI, the New York Police Department and the other law enforcement agencies that leapt into action after the failed bombing in Times Square to track and apprehended the suspect, Faisal Shahzad. Anyone who has spent time in a crowded tourist spot can appreciate the fear this near tragedy caused, as well as appreciate the efforts that went into catching Shahzad. Now that he has been apprehended, we certainly hope that authorities are able to uncover any valuable information Shahzad may have about any other planned terror attacks.

But not everyone is sharing in this national moment of relief.

Some Members of Congress criticized the legal requirement that Shahzad be advised of his Miranda rights to remain silent and to have legal counsel present during interrogation. Sen. John McCain (R-Ariz.) called it a “serious mistake.” Sen. John Cornyn (R-Texas) said, “If someone acts like a terrorist and cooperates with people intent on war against the United States, they should be treated as terrorists and not as a common criminal. And no, they should not be read their Miranda rights.” Despite the fact that the Obama administration came into office promising to restore the rule of law, Attorney General Eric Holder went on the Sunday talk shows to suggest that Congress should modify these constitutional requirements.

With all due respect, a quick review of the facts shows that Mirandizing terror suspects doesn’t do harm, and in fact appears to do a great amount of good — both in gaining criminal convictions and in gathering actionable intelligence.

Take Najibullah Zazi, who recently pleaded guilty in the foiled September 2009 plot in New York, and who was read his rights before unleashing a torrent of valuable information to interrogators. Likewise, the alleged Christmas Day bomber Umar Farouk Abdulmutallab waived his Miranda rights and cooperated with investigators, reportedly after they brought in his mother, who persuaded him. Both men also reportedly provided information on other possible attacks.

The unsealed criminal complaint against Shahzad says that he admitted driving the sport utility vehicle to Times Square and attempted to detonate it. This was reportedly after he was advised of his rights. And because of that, everything he said can be used to convict him. Without Miranda, his words are essentially worthless in court. If convicting terrorists is a national security goal that we all support, then shouldn’t we all be in favor of procedures that make that possible?

Criticizing the application of American law that upholds our constitutional principles is quite simply off base. While tough-talk posturing may serve to help some politicians rouse their base, it does nothing to keep us safe. In fact, as retired Gen. Paul Eaton chastised critics McCain and Rep. Peter King (R-N.Y.), “a failure to follow the Miranda requirement could cost us the case, which would be a national security issue, potentially putting Americans at risk.”

Treating terrorism suspects as if they’re archvillains for whom rights are too dangerous a thing to contemplate plays directly into their hands. What is terrorism if it’s not the efforts of a small group of people to hold a much larger group hostage to fear? When we act as if these terrorism suspects are such a threat that the normal rules cannot be applied to them without putting our entire system of justice in jeopardy, we’ve essentially done their work for them.

Isn’t it better, then, to simply treat them as common criminals, subject to the same treatment as others who break the law? When we remove their mystique, we diminish their power. When we apply the same rules and tactics to them as every other criminal conspiracy, we tell them they are nothing special — just another gang of thugs.

And in that, we can enlist the support of the rest of the world — an outcome that is absolutely critical to our national security. The current administration’s denunciation of extra-legal tactics has reflected something much greater than a desire to be liked; it shows awareness that we cannot go it alone in the global fight against violent extremists, that we need the trust and cooperation of allies around the world. Global cooperation does more to protect us than any amount of partisan saber-rattling. The administration should not now alter its stand for the rule law and the restoration of America’s legal standing, as both are essential to protecting America.

There are lessons to be learned from this event. But those lessons can be learned without denigrating the laws and police procedures that have proved effective in capturing and convicting those who would do us harm, and in providing information to prevent future attacks. Standing up to terrorists doesn’t require surrendering the Constitution.

— Michael German and Richard A. Rossman. German is a policy counsel for the ACLU and a former special agent for the FBI. Rossman served as U.S. attorney for the Eastern District of Michigan from 1980 to 1981 and as chief of staff of the Criminal Division of the U.S. Department of Justice from 1998 to 1999.

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