Editore"s Note
Tilting at Windmills

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December 31, 2009

INTERROGATING ABDULMUTALLAB.... About a millisecond after Northwest Airlines Flight 253 was on the ground on Friday, federal officials took Umar Farouk Abdulmutallab into custody. He was soon after charged with attempted terrorism. Conservatives aren't happy about this for a variety of reasons, but one concern in particular is especially wrong.

Tom Ridge, for example, told Americans this week that Abdulmutallab will only provide information "if he volunteers it." Similarly, the Weekly Standard's Michael Goldfarb complained that "we can't interrogate" the suspected terrorist.

Obviously, no one should expect much from Goldfarb, but Ridge doesn't have any excuses -- he has a law degree and, not incidentally, he led the Department of Homeland Security, where presumably this issue came up more than once.

In reality, Abdulmutallab -- even after having been read his rights, and securing counsel -- can be, probably has been, and will be interrogated. As Spencer Ackerman explained yesterday, "Just because the guy lawyers up doesn't mean we can't interrogate him."

U.S. intelligence and law enforcement officials I've talked to in the last several hours have been flabbergasted to hear this line of argument, because at its heart, it betrays a fundamental ignorance of the process. One who has experience in these matters called it "flat-out ignorance" to claim that the "criminal justice system or law enforcement methods impede the collection of actionable intelligence. There is no basis in fact."

Why? Let me turn this over to a U.S. official deeply familiar with intelligence matters who requested anonymity because of the sensitivity of the Abdulmutallab case. "I cannot speak from first-hand knowledge of the present matter, but if a terror suspect like Abdulmutallab invokes [his] right to silence, it does not mean law enforcement officials must cease the interview," the official said. "It simply means inculpatory information probably will not be used in court."

Got that? Mirandization is about admissibility in court. This ought to explain why law enforcement and intelligence officials aren't complaining about Abdulmutallab. It's just Obama's political enemies, who have no problem inventing a concern based on absolutely nothing and then promoting their ignorance about security matters to a pliant media.

If I had a nickel for every time Republican talking points reflected a "flat-out ignorance," I could retire a wealthy man.

It's possible, of course, that Republican activists like Ridge, Goldfarb, and others aren't hopelessly confused. Rather, maybe they understand the process very well, and are simply lying shamelessly this week in the hopes of scoring cheap points by exploiting public fear and confusion.

That, however, would be worse.

Steve Benen 10:00 AM Permalink | Trackbacks | Comments (18)

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I also seem to remember that initial reports were that Abdulmutallab was talking to investigators, telling them of the planning, the Yemen connection, etc. But hey, let's just waterboard him for the sheer vindictive, neocon fun of it, heh?

Posted by: Bob on December 31, 2009 at 10:09 AM | PERMALINK

Plus they can easily contradict themselves . In the time honored republican fashion , after they catch their breath . These times can be faster for the professional hypocrite.

Posted by: FRP on December 31, 2009 at 10:12 AM | PERMALINK

But hey, let's just waterboard him for the sheer vindictive, neocon fun of it, heh?

Well, yes, whatever it takes to make us feel virile and "tough on terr'ists", right? That and drumming up a case for a stupid war are all torture was about anyway, because virtually nobody with a cursory understanding of the topic who wasn't lying thought it ever produced intelligence of any value.

Posted by: Equal Opportunity Cynic on December 31, 2009 at 10:17 AM | PERMALINK

Ehhh.. Ackerman's point that losing admissibility is the only consequence seems wrong to me. I'm a lawyer in a different field, but if I remember right, the section 1983 and Bivens actions available against state or federal officers who violate constitutional rights would come into play here. If interrogating someone after he invoked his right against self-incrimination and to counsel violates the 5th and 6th Amendments, a civil actions should be available.. at least, I'd hope it would. Any lawyer with actual knowledge on this care to weigh in?

Posted by: Mike on December 31, 2009 at 10:21 AM | PERMALINK

You know as well as I do that the Repugs want to interrogate him to get "intelligence" about Al Qaeda, etc., not facts concerning his case. Tying him to the great Islamo-conspiracy that keeps them awake and their pants wet is what's needed. The role of a Nigerian nitwit in that conspiracy is crucial, not whether he is guilty of the crime as charged. If tortured he'd more than likely supply the name of bin Laden's barber..imagine the consequences.

Posted by: Mudge on December 31, 2009 at 10:23 AM | PERMALINK

Mike. not exactly. there is no constitutional right not to give info. there is a right against self incrimination. so long as that concrete right is not violated there is no predicate act for 1983 liability.

Posted by: eric on December 31, 2009 at 10:32 AM | PERMALINK

Ridge was obviously using the word "interrogate" as shorthand for "torture and interrogate."

Posted by: hells littlest angel on December 31, 2009 at 10:42 AM | PERMALINK

It's all self-justification by now. Rather than admit that the Bush administration seriously lost its bearings in 2001-2004 period, the GOP will commit itself to torture, unwarranted wiretapping, preventative wars as being the only effective policies for any situation. Rather than admit the crazy, they will urge everyone to else to copy the crazy.
It's not a good learning strategy.

They think that if they point to their actions in 2002-4 as a model for how they govern, that another terror attack will put them back in power. Their crazy overreaction to Christmas/Detroit proves how eager they are to play that game.

What they do not realize is that if there is another terror attack, Obama will be the recipient of any patriotic upsurge. He will be the President, and if he is cool, decisive, authoritative, his position will become even more powerful. And if he stays sane and doesn't pursue unconstitutional policies that fail, his strength will last more than 2 election cycles.

Posted by: tom in ma on December 31, 2009 at 10:46 AM | PERMALINK

This is pathetic. How do these idiots think that the Justice Department and grand juries do their jobs? The threat of felony convictions and jail time provides suspects with a powerful incentive to cooperate with investigators. Do they think that no one ever talks after receiving their Miranda warnings? Do they think that Miranda v. Arizona always results in evidence being excluded? Quite the contrary, Miranda tells the cops how to interrogate properly. Admissible confessions are taken every day all across the country, with Miranda warnings and without torture.

Posted by: Dave in DC on December 31, 2009 at 10:49 AM | PERMALINK

Well, on Law and Order, every time a perp says "I want my lawyer" they stop talking to him.

Law and Order wouldn't lie to us, would it?

Posted by: adolphus on December 31, 2009 at 10:50 AM | PERMALINK

you'd retire soon as a wealthy man...

Posted by: bruce on December 31, 2009 at 11:08 AM | PERMALINK

"It simply means inculpatory information probably will not be used in court."

What? If a suspect is Mirandized, and then makes admissions, obviously they can be used in court. If he maintains silence - that is, refuses to answer questions - what information is there? If the suspect is *not* Mirandized, then admissions may not be admissible in court.

Is the "U.S. Official" saying that the suspect can be tortured into involuntary admissions, but that this can't be used in court?

Posted by: skeptonomist on December 31, 2009 at 11:25 AM | PERMALINK

I can't believe all of this hysteria over this Richard Reid (2001) "shoe bomber" II copycat episode. He's arrested. Try him. Convict him. Put 'im in prison to rot away for the rest of his miserable life.

In the meantime, let's just get with the terms of coping with and living in the 21st Century. Republicans, and maybe the ACLU, are against full-body scanners at airports. But I'm not.

Posted by: Vigilante on December 31, 2009 at 12:05 PM | PERMALINK

Steve, 99% of the time you say someone is "hopelessly confused," he or she is full of shit, not confused.

Posted by: CMB on December 31, 2009 at 12:40 PM | PERMALINK

One could only hope the Dems take the initiative and pick one - label Ridge, Goldfarb, etc as stupid; publicly and often. If they push back and claim they knew this, then the attack should switch to "they LIE"; publicly and often. The best defense is an aggressive offense. The Rethugs get this. When will the Donkeys?

Posted by: Chopin on December 31, 2009 at 12:45 PM | PERMALINK

I was wondering what the likely advice would be from Abdulmutallab's lawyers. How can a lawyer know that a particular admission would be for the purposes of intelligence gathering only and not likely to be used against their client in some other law enforcement way? If a lawyer advises a client to stay silent in the face of law enforcement questioning why would that lawyer be OK with intelligence agency questioning? It would seem to me that Abdulmutallab would want to stay silent in the face of all questions rather than try to pick and choose which questions to answer. Also, can a suspect answer questions piecemeal, that is, can he choose to answer only a selected set of questions from only certain people or agencies? In other words, can he invoke the 5th amendment when talking to some government agencies but still talk to other government agencies?

Posted by: Budly on December 31, 2009 at 12:56 PM | PERMALINK

Uh...why on earth would people think this kid knows anything at all? Or at least, anything worth "interrogating" him about. You think senior al qaeda members or whoever sent him actually told him all about their plans before strapping explosives to his underwear and sending him on his way? He's cannon fodder, nothing more.

Posted by: anony on December 31, 2009 at 1:03 PM | PERMALINK

"Uh...why on earth would people think this kid knows anything at all?"

That's good point. Al Qeada operates in such a way that low level operatives know little more than what they need to know to carry out their part of the plan. At best, he can probably identify who gave him the bomb. But I'm sure he doesn't know that person's real name. Maybe he can look at a bunch of pictures and pick someone out. But that's it. He could also say what mosque he attended in London, but we already know that. It would be be easier to trace the PETN used by its impurities, and that requires no cooperation on this man's part. In the end, the physical and computer forensics will probably gives more than he knows.

Posted by: fostert on December 31, 2009 at 6:42 PM | PERMALINK



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