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Mirandizing Terrorists: Not So Black and White

June 4, 2010 |
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Aterrorism suspect walks into a room. Say he is steely, refusing to make eye contact and declining to answer questions. Or he is in tears (which is not uncommon), fearful of what his parents will say and confused about his future. His motivations are complex: He folds quickly after arrest, revealing everything he knows about a plot because he was never fully committed to a cause. Or he remains silent, requesting a lawyer and refusing to reveal whether another bomber is on the loose because his ideological roots run deep. Or he's somewhere in between, offering some truths but also spinning tales, challenging his interrogator to separate fact from fiction and to steer the dialogue -- or, more precisely, his unique psychology -- toward a slowly evolving relationship that reveals plots and players.

The interviewer has to make on-the-spot assessments about truth vs. fiction, about whether a steely glare will change to a cagey conversation an hour or a day later. That interviewer uses training, years or even decades of experience and a nuanced assessment of the human being across the table to determine which tools might work best. Build rapport? Ask the family to help? Commiserate with a kid who made a mistake or fell in with a bad group?

Meanwhile, in Washington, senior government officials receive briefings on what the detainee is saying, couple the information with other intelligence that draws a picture of a plot and determine next steps. Is the subject providing intelligence, for example, that matches what is being heard elsewhere? Is it specific enough to identify other plotters or peripheral players?

Our goals in these situations are to protect lives and guard American civil liberties. These goals are not at odds. The law allows us to ask a detainee questions that can save lives: Is there a broader plot afoot, more conspirators who worked with the interviewee? Is there a second plot? Who are the conspirators in the United States? Who are the conspirators overseas? We can talk to him for days, if he wants to talk, by asking him to waive his rights. This is not theoretical; we've done it, with great success, under existing law. And if he doesn't want to talk, are we under the impression that, after he's spent years demonizing his captors, a short period of rapport-building will flip him?

Terrorists have many concerns beyond whether what they say is admissible in court. Some are petrified. Others feel justified in their actions; they will never be dissuaded from their cause. Their motives for talking (or not) are not driven by Miranda. And the Supreme Court's decision this week ensures that if the interviewee doesn't respond to a Miranda warning but wants to talk a few hours later, debriefing experts have the legal latitude to talk to him.

Trained FBI interviewers, too, have concerns outside Miranda: how to build rapport. Interviewers have said that Miranda was not a bar to the intelligence-gathering they were responsible for during detainee debriefings.

Washington officials make decisions all the time on whether a detainee is providing valuable intelligence. I sat at hundreds of briefing tables for nine years after Sept. 11, 2001, and I can't remember a time when Miranda impeded a decision on whether to pursue an intelligence interview.

Conversely, Miranda can be a tool that aids the acquisition of intelligence. Mirandizing a young detainee might prove to nervous parents -- say, from countries with fearsome security services -- that the rule of law applies in the United States and that there is incentive for their child to speak. In cultures with tight family structures, those parents could be the deciding factor in whether a young detainee talks.

Yet what are we debating? We in Washington are making the Miranda issue a black-and-white decision. Read Miranda to a detainee and you are "soft," sacrificing intelligence that could save a child for the sake of reminding a detainee of his rights. Collect intelligence without Miranda and you are violating one of the tenets of our democracy, the right of an individual to seek counsel. Why is it that so many in Washington insist on making problems into absolutes, right and wrong -- without stepping back and asking more clearly what we want? My guess is that we want both: the chance to understand a plot and the plotters, and the honor, as a culture, of respecting a human's rights in a democratic society. In real-world situations, we already have both.

Some have written on this page about legal issues we need to work through -- how quickly, for example, a suspect must appear before a magistrate; whether we might need a day or two to talk to a subject before such an appearance. These questions merit debate. But they are not the game-changers that Miranda ostensibly has become.

The issue of Miranda may offer great political theater and great dramatic theater on TV, but theater isn't real life. Somehow in the wonderland of Washington, we have transformed what should be a conversation on a national security issue into a politicized prize fight, replete with the suggestion that whoever's on the other side is against the national interest. I ain't buying it.

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