Is a Terrorist’s Right to Remain Silent Different When Granted by a Republican Administration?

Republicans are criticizing President Obama for his decision to try failed terrorist Umar Farouq Abdulmuttalab in criminal court instead of a military commission; former Vice President Cheney, for example, in his comments to Politico, said that the president “seems to think if he gives terrorists the rights of Americans, lets them lawyer up and reads them their Miranda rights, we won’t be at war.”

The issue seems at this point to be less the severity of the punishment but the ability of the defendant to invoke their Fifth Amendment rights against self-incrimination. Why, the argument goes, should Abdulmuttalab be permitted to clam up when he may have actionable intelligence?

White House homeland security adviser John Brennan on Sunday explained the decision to CNN's State of the Union by saying, "We try to adapt the tools in the right way. We are also a country of laws. This was an individual who was arrested on U.S. soil. If we decide at some point that we're going to charge and hold somebody under the enemy combatant status, it's a tool that is available to us. We made a decision to do this.  We have great confidence in the FBI and other individuals in terms of debriefing. We have great confidence in our court system so that we can use that to our advantage. And individuals in the past have, in fact, given us very valuable information as they've gone through the plea agreement process."

Brennan told Fox News Sunday that “we have an array of tools that we will use, and we want to make sure we maintain flexibility as far as how we deal with these individuals…Just because somebody is going to be put into the criminal legal process does not mean that they’re — we don’t have other opportunities to get information from them…As you talk with the lawyers and you talk with the individuals, as they recognize what they’re facing as far as the charges, conviction and possible sentence, there are opportunities to continue to talk about it. FBI has some of the best interrogators and debriefers in the world, and so I’m confident that we’re going to continue to be able to work this system…”

Anchor Chris Wallace pointed out that once Abdulmuttalab “gets his Miranda rights, he doesn’t have to speak at all.”

“He doesn’t have to, but he knows that there are certain things that are on the table, and if he wants to, in fact, engage with us in a productive manner, there are ways that he can do that,” Brennan said.

The debate is playing out over the airwaves and the blogosphere.

“A terrorist like Abdulmutallab is not a common criminal who should be told he has the ‘right to remain silent,’” writes former Bush speechwriter and National Review writer Marc Thiessen. “He is an enemy combatant, who tried to commit an act of war against the United States of America. He possesses vital intelligence about the terrorist network that deployed him to attack America, and may be planning still more attacks. The Obama administration has a responsibility to make him give up that information. Treating him like a criminal is an abdication of that responsibility, and puts our nation at risk.”

Given that President Bush pursued criminal charges against attempted shoe-bomber Richard Reid, for instance, how can Republicans criticize President Obama for doing the same with Abdulmuttalab?

“Simple,” writes Thiessen “The Richard Reid attack came almost immediately after 9/11, long before we figured out that we had other options than handing him over to law enforcement. After that came Jose Padilla, who was arrested at the Chicago airport on a mission from KSM to blow up apartment buildings in the United States. He was taken out of the criminal-justice system, declared an illegal enemy combatant, and transferred to the Charleston brig for interrogation.”

At Talking Points Memo, Josh Marshall calls that argument clearly preposterous. The reason we handled Padilla that way was because we didn't have clear evidence to try him in a civilian court. If that were the case why did we try all the other people arrested in terrorist plots after Padilla in civilian courts? It can't be because they were American citizens, because Padilla is an American citizen too. There's no way to spin this. There's no reason beside GOP electoral strategy for not trying AbdulMutallab in a regular American Court.”

Marshall adds “President Bush okayed military tribunals a month before Reid tried to blow up the plane.”

Thiessen responds “Josh asks:  ‘Why did we try all the other people arrested in terrorist plots after Padilla in civilian courts?’ Answer:  We didn’t. We didn’t try Binyam Mohammed, who was Padilla’s partner and captured after him, in a civilian court — we sent him to Guantanamo. We arrested and charged Uzair Paracha in a New York federal court for his part in a KSM plot, but Saifullah Paracha (Uzair's father) was arrested overseas and shipped to Gitmo even though he was working with Uzair and al-Qaeda in the same plot. Majid Khan, a onetime U.S. resident, was detained overseas, kept in black sites, and then eventually shipped to Gitmo. Khan was working with the Parachas on a post-9/11 plot in which Khan was going to sneak back into the U.S. and hit any number of targets, and he provided $50,000 to the terrorist Hambali for a plot to fly a plane into the Library Tower in Los Angeles. Khan is still at Gitmo. Mohammed al-Kahtani was never tried in a federal court, even though his fingerprint matched the fingerprint of a would-be 9/11 hijacker who was turned away from the Orlando airport. Kahtani was and remains detained at Gitmo.”

It goes on from there.

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It is worth noting, however, that in many instances the Bush administration praised the notion of a criminal venues – and not just when Attorney General John Ashcroft announced the criminal indictment of Moussaoui, saying “the United States of America has brought the awesome weight of justice against the terrorists who blithely murdered innocent Americans.”

Thiessen is correct that not “every” defendant after Padilla was tried in a civilian court. But it’s also true that Bush administration officials – at least if you take them at the word – seriously considered whether defendants such as Moussaoui, Reid and others should be put before a military tribunal. And it’s certainly true that Republican officials praised the various law enforcement investigations and prosecutions of several defendants – and in some instances it may be difficult for you to imagine those same officials doing the same thing had Barack Obama been president and Eric Holder been Attorney General at the time.

On December 12, 2001, White House Press Secretary Ari Fleischer was asked specifically why President Bush rejected the idea of having Moussaoui go before a military tribunal.

“The president two days ago discussed with Attorney General Ashcroft during a Oval Office meeting what the best venue would be to bring Mr. Moussaoui to justice,” Fleischer said. “And as the president said when he created the military tribunals, he wanted to have the option of a military tribunal for those limited number of cases where the national security of the United States or our ability to continue to obtain intelligence information without compromising sources or methods would be achieved as a result of going to a military court as opposed to a civilian court. So, during his meeting with the attorney general, the president asked a series of questions about civilian versus military trial, and asked, if this were to be decided in a civilian court, civilian criminal court, would national security be endangered, would sources or methods be compromised? The president was satisfied that the answers to those questions were no. The attorney general recommended that this go to a civilian court. The president concurred.”

Vice President Cheney repeated some of that argument to the Washington Times on January 3, 2002.

“There's a good, strong case against him,” Cheney told the Times. 

On April 3, 2006, when Moussaoui was convicted, then-Senate Majority Leader Bill Frist, R-Tenn., said “Zacarias Moussaoui received what he would deny all of us. Today justice was served.”

A month later, former New York Mayor Rudy Giuliani told the New York Daily News that while he was “very disappointed” Moussaoui was not sentenced to death since he “thought the death penalty was the appropriate conclusion, at the same time, I was in awe of our system. It does demonstrate that we can give people a fair trial, that we are exactly what we say we are. We are a nation of law… I think he's going to be a symbol of American justice."

The decision to try Reid in a criminal court, at least according to Ashcroft in 2002, wasn’t debated much.

Asked specifically if he considered using a military tribunal, Ashcroft said, “You know, the facts as developed in this case were a result of this alert vigilance and participation of the American public. They are very clear. … People were alert, and that created a factual basis for the kind of court case that we've alleged. I did confer with the…Department of Defense and with their general counsel, and they had no objection to our proceeding in this matter.” 

Then there was the case of Iyman Faris, the former truck driver convicted of being part of an al Qaeda plot to destroy the Brooklyn Bridge. According to the Justice Department, “Faris admitted that upon returning to the United States from Pakistan in April 2002, he researched ‘gas cutters’ – the equipment for severing bridge suspension cables – and the New York City bridge on the Internet. Between April 2002 and March 2003, he sent several coded messages through another individual to his longtime friend in Pakistan, indicating he had been unsuccessful in his attempts to obtain the necessary equipment. Faris admitted to traveling to New York City in late 2002 to examine the bridge, and said he concluded that the plot to destroy the bridge by severing cables was unlikely to succeed because of the bridge’s security and structure. In early 2003, he sent a message that ‘the weather is too hot’ – a coded message indicating that the bridge plot was unlikely to succeed.”

Arrested by the FBI in 2003, Faris became a double agent and helped the FBI for a few months. He was sentenced to 20 years in prison.

One might think that the fact that Faris will be a free man in 2023 would be a matter of some contention, but the Justice Department’s vigilance was praised.

“This most recent arrest is a visible reminder that our intelligence and security agencies are thwarting terrorist activities in the United States,” said Rep. Todd Tiahrt, R-Kan.

“In the last four years under the Patriot Act, we have seen a great increase in the ability of law enforcement officials to investigate and track terrorists,” said Rep. Mike Pence, R-Indiana. “For example, aided by provisions of the Patriot Act, law enforcement officials in Ohio were able to arrest Iyman Faris.”

- jpt