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Miranda Warning Works Just Fine in Terrorist Cases

Attorney General Holder’s approval rating dropped about as quickly as the Dow Jones did last Thursday when he told Congress in March of this year that he predicted that “we will be reading Miranda rights to the corpse of Osama bin Laden.”

Perhaps recognizing that his inartful comment only served to confuse his supporters and outrage his detractors, he tried again in April when he told Congress that the evidence against Bin Laden was “sufficient” enough that, assuming he were captured, any additional statements by him would not be necessary. I may be among the minority of Americans (whether a supporter or a detractor) who believes AG Holder’s initial statement was better than his clarification.

When Miranda v. Arizona was argued before the Supreme Court in 1966, the government warned the Court that the required use of procedural safeguards “effective to secure the privilege against self-incrimination” would more or less result in the end of successful interrogations.

In other words, once an accused were informed that he had, say, the right to remain silent and the right to have counsel present during interrogations, the accused would naturally invoke those rights and a confession would rarely, if ever, follow.

Most people involved in the criminal justice system would disagree with this dire forecast and confirm that it is extremely common for an accused to waive his rights. (Of course, there are exceptions: Miranda himself was eventually killed in a knife fight in 1976 by a suspect who, ironically, invoked his Miranda rights.)

While acknowledging that the image of a soldier reading a captured terrorist his rights seems both unnecessary and burdensome (it’s also a little far-fetched: more likely, it would be an FBI agent administering those warnings), we have to ask the obvious question: what’s the harm in advising a terrorist of his rights? Whether a terrorist is tried in a military commission or the criminal justice system, a statement—if it is going to become evidence—has to be admissible.

In order to be admissible in a civilian court, it must be voluntary and, if made during a custodial interrogation, must be made after the knowing, intelligent, and voluntary waiver of the Miranda warnings.

In order to be admissible under the Military Commissions Act of 2006, the military judge must find by a preponderance of the evidence, depending on the date of the statement, that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment. A simple waiver of the Miranda warnings would seemingly contribute to the analysis under all three prongs.

Critics argue that if a terrorist invokes his rights, the government would lose valuable intelligence and present a weaker case in court than it would have otherwise. This is nonsense.

First, a terrorist who invokes his rights is not likely someone who was going to willingly provide intelligence in the first place. Second, an invocation by an alleged terrorist of his Miranda warnings would not necessarily result in the suppression of a statement, assuming one is eventually obtained. More to the point, which would by my third, even if a suspected terrorist invokes his rights, there seems to be nothing that would prevent intelligence officers from taking necessary steps to obtain information from the suspect. The only downside would be that such statements may not be admissible in court.

So far, this policy of reading an accused his rights has worked. On Christmas Day in 2009, Umar Farouk Abdulmutallab allegedly attempted to detonate explosives in his underwear on a Northwest flight en route from Amsterdam to Michigan.

His plot failed, he was arrested and was read his Miranda warnings. He waived those rights and is reportedly cooperating with law enforcement officials. More recently, Faisal Shahzad was arrested for his alleged involvement in the Times Square car bomb scheme. He too waived his rights and is apparently cooperating with authorities.

Yesterday, the Attorney General told David Gregory on “Meet the Press” that law enforcement officials, prior to reading Shahzad his rights, relied on the “public safety exception” to obtain information from Shahzad. It was also used in Abdulmutallab’s case. This exception allows officials to forgo the requirement that Miranda warnings be given before questioning if there are exigent circumstances which require protection of the public. Curiously, Holder then said that “we have to think about– perhaps modifying– the rules that– interrogators have.

And somehow coming up with something that is flexible and is more consistent with the threat that we now face.” The fact that the exception has been successfully relied upon in these two most recent cases seems to be strong evidence that the current exception is indeed flexible. In other words, there is no need for Congressional action to add something for which the law already provides.

Column: Former Assist. U.S. Atty. Says Miranda Warning Works Just Fine In Terrorist Cases

Steven Levin was an Assistant U.S. Attorney in Maryland and North Carolina for 10 years before forming a law firm Levin & Gallagher.  He had previously  served on active duty for seven years in the United States Army as a defense counsel, an appellate attorney  and a trial attorney.  He is the co-author of a blog on white collar crime called Fraud With Peril.

Steve Levin

Steve Levin

By Steven Levin

Attorney General Holder’s approval rating dropped about as quickly as the Dow Jones did last Thursday when he told Congress in March of this year that he predicted that “we will be reading Miranda rights to the corpse of Osama bin Laden.”

Perhaps recognizing that his inartful comment only served to confuse his supporters and outrage his detractors, he tried again in April when he told Congress that the evidence against Bin Laden was “sufficient” enough that, assuming he were captured, any additional statements by him would not be necessary. I may be among the minority of Americans (whether a supporter or a detractor) who believes AG Holder’s initial statement was better than his clarification.

When Miranda v. Arizona was argued before the Supreme Court in 1966, the government warned the Court that the required use of procedural safeguards “effective to secure the privilege against self-incrimination” would more or less result in the end of successful interrogations.

In other words, once an accused were informed that he had, say, the right to remain silent and the right to have counsel present during interrogations, the accused would naturally invoke those rights and a confession would rarely, if ever, follow.

Most people involved in the criminal justice system would disagree with this dire forecast and confirm that it is extremely common for an accused to waive his rights. (Of course, there are exceptions: Miranda himself was eventually killed in a knife fight in 1976 by a suspect who, ironically, invoked his Miranda rights.)

Read more »

Weekend Series on Crime: History of the NY and Chicago Mob

FBI Agent Keith Byers Talks About Fighting Border Corruption

httpv://www.youtube.com/watch?v=JbatfylpBmA

Nine Years Later, a Book on the FBI and D.C. Police Probe into Slain Intern Chandra Levy

Back in 2001, when I was a reporter for the Washington Post, I started working on a story about a missing intern named Chandra Levy. For a while, I worked day and night, and even went to California for three weeks to work on the story. Then came Sept. 11, 2001, and the story vanished, only to resurface in May 2002 when her skeletal remains were found in Rock Creek Park in Northwest Washington. Now 9 years later, former colleagues Scott Higham and Sari Horwitz, who have doggedly pursued the story, have written a book on the case called “Finding Chandra: A True Washington Mystery”. Here’s part of the story, an adaptation of the book. Allan Lengel

chandra book

By Scott Higham and Sari Horwitz
Washington Post Staff Writers

WASHINGTON — The three D.C. detectives traveled 3,000 miles with a carefully crafted plan.

At a sand-colored, maximum-security federal prison on the edge of the Mojave Desert, they prepared to interview the man they suspected of raping and murdering Washington intern Chandra Ann Levy. It was Sept. 9, 2008.

For seven years, Ingmar Guandique, a Salvadoran immigrant with a penchant for violence toward women, had eluded the police and FBI as a viable suspect in the city’s most famous unsolved murder. The original detectives failed to connect him to the crime that captured the attention of the nation during the summer of 2001 with its subplots of sex and scandal and the possibility that a member of Congress might have been involved.

Now it was up to the new detectives. They put their plan into play. They took a sample of Guandique’s DNA and, bluffing, told him they expected it would match DNA collected during the murder investigation.

“So what if I touched her?” Guandique said.

To read more click here.

FBI Dir. Mueller Quietly Takes Off on Overseas “National Security Focused Trip” to Nations Including Yemen and Georgia

Robert Mueller III/file photo

Robert Mueller III/file photo

By Allan Lengel
ticklethewire.com

WASHINGTON — At a high-profile Justice Department press conference Tuesday, FBI Director Robert Mueller was no where to be seen when officials discussed the arrest of the Times Square car bomb suspect.

In his place, was his deputy director John Pistole, who stood along side a host of high-ranking federal officials including Attorney General Eric Holder Jr. and Dept. of Homeland Security Secretary Janet Natpolitano.

Mueller quietly took off early in the week for what FBI spokesman Michael Kortan describes as a “multi-country national security focused trip.”

For security reasons, Kortan declined to be more specific. But he said the director would be returning home on Friday. Overseas  press reports showed his trip included stops in  the nation of Georgia and Yemen. The state run Yemini news agency Saba reported that Mueller met with Yemen President President Ali Abdallah Salih.

“During his meeting with President Ali Abdallah Salih, Mueller accentuated the USA’s readiness to broaden the horizons of cooperation with Yemen as well as its support to maintain Yemen’s security, stability and unity,” the news agency reported.

The news agency said Mueller congratulated Yemen on its preemptive operations against al Qaeda and “the President reiterated Yemen’s request to receive its individual detainees in Guantanamo camp to rehabilitate or try them based on their cases’ files.”

In the meantime, Kortan said Mueller has been interacting daily with Pistole and national security managers on the New York situation and “other matters.”

Agent Robert Anderson Named SAC of Intelligence Division in Washington Field Office

Anderson-Robert-Jr-07-08-officalBy Allan Lengel
ticklethewire.com

WASHINGTON — FBI agent Robert Anderson, Jr. is leaving headquarters to take on the job as special agent in charge of Intelligence Division for the Washington field office, the agency announced Thursday.

Anderson has been the chief of the Counterespionage Section in the Counterintelligence Division at FBI headquarters.

Anderson started his career 1995 and was first posted to the Washington field office, where he investigated narcotics and violent crimes, the FBI said.

Read more »

Reading Miranda Rights Remains Hot Button Issue in Terrorist Cases

hot buttonBy Allan Lengel
ticklethewire.com

WASHINGTON — It’s not surprising that some politicians on the Hill — including Sens. John McCain and Joseph Lieberman — started to loudly complain the other day when they learned the FBI read Times Square car bomber Faisal Shahzad his Miranda rights.

And it’s not surprising the government has been hesitant to jump into the public debate.  On Wednesday Justice Department spokesman Dean Boyd  issued a statement when asked by ticklethewire.com whether Justice Department procedures on issuing Miranda rights in terrorist cases had changed since the underwear bomber incident in Detroit in December.

“There has been no change in the long-standing law on Miranda or in the FBI’s current policy governing use of Miranda, which was issued during the prior Administration,” Boyd said.

“Obviously, the facts and circumstance of each particular terror case are different and the government’s actions in each case will depend entirely on the immediate circumstances of the threat and the case.

“In this case, Shahzad is a U.S. citizen and, by law, may not be prosecuted in a military commission. The suspect continues to talk to agents and continues to provide useful information. The agents and officers who took Shahzad into custody and questioned him did precisely what they are trained to do, what their policies require them to do and what this nation expects them to do.”

Then on Thursday, Attorney Gen. Eric Holder Jr. told a Senate panel “the giving of Miranda warnings has not been a deterrent” and the suspect was continuing to cooperate.

The Associated Press reported that administration had learned lessons from the December underwear bombing incident by having a team ready, which knew when to read the suspect the Miranda rights.

Reading Miranda rights — the right to remain silent — became a controversial issue back in December when agents Mirandized the underwear bomber Umar Farouk Abdulmutallab, who has been cooperating with authorities. A boat load of politicians felt Abdulmutallab should never have been read his rights and argued the case should have gone to military court.

This week, the buttons were  pushed all over again.

Sen. Lieberman/senate photo

Sen. Lieberman/senate photo

“My own feeling is that anybody who we decide there is reasonable possibility that they’ve committed a terrorist act ought to be turned over to our military justice system because though it’s an unconventional war, they are prisoners of a war,” Lieberman told Fox News. ” A war that Islamic extremists declared against the United States, certainly, on 9/11/01. So, bottom line, I don’t believe somebody like Faisal Shahzad should receive Miranda rights. I don’t believe he’s entitled to them.”

FBI deputy director John Pistole, at a press conference on Tuesday, explained that the FBI Joint Terrorism Task Force first interviewed New York car bomber Shahzad under the “public-safety exception to the Miranda rule”, and said Shahzad was very cooperative. The exception  allows investigators to interview a suspect to find out if there’s an imminent threat to people before Mirandizing them.

“He was eventually transported to another location, Mirandized; and continued talking,” Pistole said.