Some Cats Really Like to, You Know, Profile and Front

by Eric Martin

The overwhelming consensus amongst counterterrorism scholars, experts and practitioners is that intelligence and law enforcement are the most effective tools available in terms of implementing effective counterterrorism policy, and, thus, these options should be relied on primarily.  Not only does the military approach and attendant "war" rhetoric play to the advantage of transnational, stateless terror groups like al-Qaeda, but so too does that approach feed the overinflated, romantic sense of importance that is so appealing to potential recruits and members. As the RAND Corporation put it rather succinctly in a 2008 report, the US should optimize its approach by:

• Mak[ing] policing and intelligence the backbone of U.S. efforts. Al Qa'ida consists of a network of individuals who need to be tracked and arrested. This requires careful involvement of the Central Intelligence Agency and Federal Bureau of Investigation, as well as their cooperation with foreign police and intelligence agencies.
• Minimiz[ing] the use of U.S. military force. In most operations against al Qa'ida, local military forces frequently have more legitimacy to operate and a better understanding of the operating environment than U.S. forces have. This means a light U.S. military footprint or none at all.

Key to this strategy is replacing the war-on-terrorism orientation with the kind of counterterrorism approach that is employed by most governments facing significant terrorist threats today. Calling the efforts a war on terrorism raises public expectations — both in the United States and elsewhere — that there is a battlefield solution. It also tends to legitimize the terrorists' view that they are conducting a jihad (holy war) against the United States and elevates them to the status of holy warriors. Terrorists should be perceived as criminals, not holy warriors.

The good news is that the United States has a natural advantage in the law enforcement/intelligence arena: moreso than in European nations struggling with Islam-perverting terrorism, the Muslim community in the United States tends to feel more accepted, less alienated and less persecuted.  This assimilating melting pot effect has helped to establish a human trip wire within the Muslim community, with numerous plots weeded out and interdicted by American Muslims themselves, working in close concert with law enforcement and intelligence personnel.

However, that is not an immutable dynamic.  Wajahat Ali had a solid piece discussing some of the positive and negative trends regarding these issues recently:

The arrest of five American Muslims in Pakistan allegedly conspiring to join the terrorist groups Jaysh Muhammad and Lashkar-e-Taiba exposes a troubling phenomenon of domestic radicalisation, but also highlights an evolved, proactive Muslim American community seeking partnership to curb extremism. [...]

These isolated examples of imported radicalism nonetheless fuel the latent prejudices of a minority convinced their 4 million Muslim American neighbours represent a treacherous fifth column of stealth jihadists ready to spontaneously ignite...

This misperception certainly is not assuaged by prominent religious and political figures, mostly stemming from the Republican party, who espouse divisive rhetoric fostering mistrust and fear. Franklin Graham, an influential evangelical Christian, recently stated on CNN: "We have many Muslims that live in this country. But true Islam cannot be practised in this country...I don't agree with the teachings of Islam and I find it to be a very violent religion." Sarah Palin casually suggested we "profile away" when it comes to our American neighbours of Muslim and Middle Eastern backgrounds.

This polarisation and the reckless mentality of treating Muslims as suspects instead of partners not only subverts civil rights and due process but greatly hinders the best opportunity to combat domestic radicalisation: respectful co-operation with the Muslim American community.

As an example, the Virginia Muslim community's private and public response to the arrest of five of their young people marks a decisive change of proactive engagement with law enforcement resulting from mutual trust and open communication. Upon discovering a video left behind by the alleged leader of the group declaring his plans to fight on behalf of Muslims, his parents consulted with the Council on American-Islamic Relations (Cair) who reported the disappearance of the young men to the FBI. Ironically, the FBI as of last April refused to view Cair, the most influential Muslim American advocacy group, as an "appropriate liaison partner" due to unfounded and baseless allegations connecting its executives to Hamas.

In addition, the Muslim Public Affairs Committee recently issued a proposal for law enforcement officials and Muslim Americans to use their respective resources and strengths to unite in combating terrorism. However, they stressed an important caveat: "Unfortunately, in the current political climate, the actions of certain law enforcement agencies – whether spying on peaceful activist groups and houses of worship without reasonable suspicion, or religious profiling – have added to difficulties."

Unfortunately, in reaction to the most recent foiled underpants bomber* plot, many leading conservative voices are once again renewing calls for the type of profiling that undermines the very same sense of community, shared values and belonging that has helped to tamp down domestic-born terrorist threats.  Pursuing such policies would be a terrible self-inflicted wound, weakening a valuable domestic law-enforcement/intelligence asset.

In a related sense, the numerous calls for trying Umar Farouk Abdulmutallab in military tribunal rather than in a civilian court mistakenly serves to elevate his status from common criminal to soldier/holy warrior.  Former McCain campaign aide Michael Goldfarb goes further (see, also, William Kristol), seemingly ruing the fact that torture will be off the table, as well as displaying a shocking level of ignorance as to the workings of the US criminal justice system:

Of course, we also don't get to interrogate him to find out who he was working with and what other plots are out there. If he were treated as an enemy combatant and transferred to military commission system, we could use Army Field Manual techniques without Miranda (not as effective as enhanced techniques, of course, but much better than standard police practice). We could use his non-Mirandized statements against him in military commissions, so long as the statements were not forcibly coerced and were otherwise reliable. Instead, it's three squares a day, the best legal defense the ACLU can provide, and maybe the chance for parole before the kids he was trying to kill on that plane even make it out of college.

One can safely assume that, contra Goldfarb, Abdulmutallab will face a conviction and lengthy prison sentence, even without self-incriminating statements derived via torture and/or interrogation by military personnel.  Here's another egregious example of pining for torture/military interrogation:

But as Spencer Ackerman pointed out in his debate with Pat Buchanan— who was openly advocating torturing Abdulmutallab — on MSNBC this morning, there is nothing to indicate that he is not cooperating fully under routine interrogation techniques.

Do they think that if he’s not under military control, he’s not being interrogated? The FBI has been interrogating him from the moment he was arrested and all indications are that he has been cooperative and has already revealed his connections to Al Qaeda, where he got the bombmaking materials and so forth.

But this gets it exactly wrong in at least two ways.  First, we want to downplay the importance of terror suspects, not hype them up.  As Marc Sageman noted:

The United States underestimates the value of prosecutions, which often can be enormously demoralizing to radical groups. There is no glory in being taken to prison in handcuffs. No jihadi Web site publishes such pictures. Arrested terrorists fade into oblivion. Only martyrs live on in popular memory.

Unless, of course, we're talking extra-judicial prisons like Gitmo which can be used to highlight our hypocrisy and thus weaken our claims to the moral highground.  Not only would abstention from torture and the use of civilian courts with standard rights afforded the defendant do the most to drain the glory from the would-be martyr, and thus reduce the appeal for potential copycats, but actually living up to our ideals is itself a potent weapon in convincing would-be and active terrorists of the error of their ways. 

In this instance, doing the right thing is also the right thing to do.

(*And, yes, the "underpants bomber" is an excellent tag for Abdulmutallab.  Talk about undermining the romantic image.)

Comments

[Hogan]

Good stuff, but I think you pulled the wrong quote from the Michigan Messenger site.

[Eric Martin]

That was the quote I wanted, but I think I'll move the parenthetical about Kristol to avoid confusion. I wasn't going to actually quote him.

[RepubAnon]

The Adventures of Captain Underpants and the Great Jihad!

Some guy getting caught with full diapers and spending 20+ years in jail isn't something that'll look good on Osama's recruiting posters.

[Rob in CT]

But wait, the way you tell it, nobody gets to torture, bomb, or otherwise get their rocks off at the expense of others. Therefore it's lame and you're an America-hating librul weenie.

I find this post to be perfectly reasonable and am therefore also a self-hating American. Possibly even a commie.

[Carleton Wu]

I wonder why these folks don't advocate using torture and denying rights to eg domestic terrorists. Or drug dealers. Or white-collar criminals. What (other than color) separates militia psychos like McVeigh from Abdulmutallab?
I mean, let's assume for the moment that torture works or that Miranda rights are just a big impediment to convicting the guilty- why have these prohibitions at all?

That's probably the most worrisome aspect of this whole thing- the erosion of the understanding that these protections serve some real purpose, as opposed to being luxuries that we can disregard the moment some 'libertarians' get frightened. Ben Franklin had something to say about that...

[Rob in CT]

Carleton,

Do you believe these folks think Miranda rights are a good idea? Or that torturing nasty "alleged" criminals* is wrong?

I don't. They just know that openly advocating such things is a bridge too far. For now, anyway.

[Rob in CT]

Damn, I forgot to do something with that asterisk.

I was going to point out that "white collar" criminals are clearly different from domestic terrorists or drug dealers. They tend to hail from the same socioeconomic strata as the pundits, for one thing. They are generally non-violent. So I doubt you'd see any of these armchair torturers go after that group. Those folks don't make the Goldfarbs of the world wet their beds.

[Carleton Wu]

Do you believe these folks think Miranda rights are a good idea? Or that torturing nasty "alleged" criminals* is wrong?

Im sure some don't like Miranda. Others fervently believe in their rights and will go on about them ad nauseum, but neither grasp that rights can't be arbitrary nor see the hypocrisy in demanding rights for themselves while refusing them to others.
The folks who just don't believe in rights at all- at least they're consistent (if authoritarian). But I get the sense that the lion's share of those wanting torture would scream bloody murder if the government didn't respect their rights, defined as broadly as possible. Witness eg Sarah Palin claiming that labeling her attacks on Obama as negative campaigning were an attack on her first Amendment rights (or, from the 'left', Modo saying that banning her from the McCain campaign plane was a violation of her first Amendment rights).

[Michael Cain]

Of course, there's the "use it or lose it" issue for massive military spending. Without the large foreign deployments into active "war" zones, the public is likely to figure out that there is no real need for the US to spend as much on its military as the rest of the world combined spends on theirs.

[Nombrilisme Vide]

What (other than color) separates militia psychos like McVeigh from Abdulmutallab?

Religion. Duuuuuuuuuuh! ;)

[suzula]

I like the label UNDIEBOMBER

[efgoldman]

@ Carleton Wu
But I get the sense that the lion's share of those wanting torture would scream bloody murder if the government didn't respect their rights, defined as broadly as possible.

Some things never change.
One of the Reaganite memes in the late 70's/early 80's was that all of us libruls were responsible for all the pervasive crime because we were a bunch of crybaby weenies who coddled criminals. You know, by insisting that everyone had rights and like that.
Comes the felon Ollie North, convicted of plain, ordinary thievery (even though the case was about Iran/contra). Well, he got off on a technicality: the Senate committee gave him the wrong kind of immunity for his testimony, so anything he said there should have been excluded by the feds from the court case. Poof, there goes the criminal case. Said Ollie, who had been convicted of a felony which he absolutely committed, "I have been vindicated."

No, he wasn't. He got off because all of us libruls were a bunch of crybaby weenies who coddled criminals. You know, by insisting that everyone had rights and like that.

Bleepholes.

Hypocrite bleepholes.

[Marty]

"there is nothing to indicate that he is not cooperating fully under routine interrogation techniques.

Do they think that if he’s not under military control, he’s not being interrogated?"

Is there any actual evidence of this? Because if he has even the worst ACLU lawyer or local public defender, he hasn't been interrogated or said anything since he was Mirandized.

Maybe you don't understand that they don't get to keep interrogating him after his lawyer says go away, well that is if he really has all the rights you would have.

[elm]

From looking at the television and listening to the radio, it seems the Serious People have decided that airports will, inevitably, deploy Millimeter Wave Scanners (virtual strip search). It really looks like the perfect solution: ineffective, expensive, and invasive.

Apparently those of us who value our privacy (and the privacy of our wives, daughters, sisters, and mothers) are the Shrill, Unserious people who must be ignored. This isn't the time to ask questions about effectiveness or cost.

Some of the radio commenters have been extraordinarily good, stressing that though they are very modest, they would be willing to give up all of their privacy in exchange for any additional amount of security.

[elm]

Marty: Where is your evidence that he's not cooperating? Criminals routinely cooperate with police even when they have lawyers and even when they cannot be compelled to cooperate.

Also, this quote:

"FAILED Nigerian suicide bomber, Mr. Umar AbdulMutallab, has warned that other young men are being trained by Al Qaeda to bring down United States’ airlines."

Indicates that he has not stopped talking to the FBI.

[Marty]

Wow a quote from Punch on the Web, thats as authoritative as, well, me saying it. I prefer admitting I don't know what he is doing, but if he has a decent lawyer he isn't talking.

Because right now it is pretty hard to prove his intent to commit a terrorist act, having burned his own a$$. I am not as sure as some others he is automatically convictable of very much.

[elm]

I think you mean "No, I don't have any such evidence."

[Marty]

Yep, and neither do you.

[Ugh]

So apparently the word on the street is that the counter terrorism US military folks and the counter insurgency US military folks (not necessarily from the same branches of US military folks) can't get along in Afghanistan.

But hey, I'm sure once we get the intra-US military folk-fighting sorted out we can move on to the much more familiar and easy task of sorting out the various Afghan factions.

Feh.

[elm]

Also, you think it'll be hard to prove that he attempted to commit a terrorist act? Really?

Al Qaeda has claimed responsibility, witnesses on the plane observed his behavior, the FBI has enough of the device to identify the explosive, and his father is cooperating.

Whether or not he cooperates, the evidence against him looks pretty damning.

[russell]

I am not as sure as some others he is automatically convictable of very much.

He brought incendiary materials onto a plane and set them on fire.

My money says he'll be doing some time.

If you'd like to take that bet, let me know.

[Marty]

Russell, Some time no doubt, how much, not so sure.

[Tony P.]

Marty scares me. He sees no evidence that the Undiebomber has been "interrogated". Whether or not he has answered questions, made statements, or otherwise given information to the namby-pamby lawmen who have him in custody is apparently irrelevant to Marty. The important point is that he has not been "interrogated". The word "intrerrogated" seems to mean something very specific in Marty's vocabulary -- something more specific than "questioned".

Sure, a guy who blew his own ass up MIGHT be a mastermind of evil. He MIGHT know the names and addresses of several other evildoers who already have their one-way tickets on US airliners. Marty has no evidence that the Undiebomber has given up those names and addresses. Obviously that's because the guy has not been properly "interrogated".

Frankly, I'd like to know what a lawyer WOULD advise a client like the Undiebomber. "They got nuthin' on you kid so don't say a word"? Or, "Tell me something I can bargain for your life with"? Which of those is the most likely advice from a lawyer to a client who was caught red...uh...handed?

--TP

[Marty]

Tony,

I was only questioning the whole line of argument that he was being interrogated on any ongoing basis. The information they had gleaned

and has already revealed his connections to Al Qaeda, where he got the bombmaking materials and so forth

seemed pretty innocuous. The point of the post seemed to be that we should treat him like any other criminal, which means they have limited time and ability to question him. Trying to stick to the facts or at keast the believable.

And I agree that the lawyer could be looking for deal material too.

[Tony P.]

Marty,

One of the lawyers around here will have to tell us whether Miranda says that: 1)you don't have to answer questions; or 2)the police can't ask them.

From the odd Law and Order episode I've seen over the years, the Hollywood interpretation seems to be that your lawyer can tell the police not to even ask you questions. But also from that same font of legal information, I gather that the Miranda warning says "you have the right to have a lawyer present during questioning". That would seem to be a different, and more plausible, thing. So what do you mean by "interrogated on any ongoing basis"?

--TP

[Nombrilisme Vide]

The information they had gleaned

and has already revealed his connections to Al Qaeda, where he got the bombmaking materials and so forth

seemed pretty innocuous.

Um... uh... that's innocuous? What, pray tell, were you hoping they'd be getting out of the longed-for "ongoing interrogation"? GPS coordinates for UBL? Names and addresses of all the other would-be terrorists he simply must know? Confirmation that Nidal Hasan was acting under orders? The mind boggles.

Even if he was disclosing "actionable" information, why exactly would details of that be being publicly aired in the media?

[Eric Martin]

Maybe you don't understand that they don't get to keep interrogating him after his lawyer says go away, well that is if he really has all the rights you would have.

If he volunteers info, then that's that. They can keep questioning him, but he can invoke his right to remain silent. It's up to him.

[russell]

Some time no doubt, how much, not so sure.

US Code, Title 18, Part 1, Chapter 113B. Up to 20 years if it's not a conspiracy, life if it is a conspiracy.

My guess is that the DOJ will go for the conspiracy.

Richard Reid is doing three life sentences, four 20 year sentences, and an additional 30 years, all consecutive. Followed by five years of supervised release, which is a nice piece of macabre drollery. No opportunity for parole.

It's unclear to me how Abdulmutallab's case is much different.

[bobbyp]

Russell,

You may have to lay some odds to get Marty to commit. Long ones are OK, since your side of the wager is a lead pipe cinch.

As an aside, perhaps if we waterboarded a few investment bankers, the institutional right would find a way to get a small bit of their humanity back and go 'squeamish' on torture.

[Marty]

"What, pray tell, were you hoping they'd be getting out of the longed-for "ongoing interrogation"?"

I don't want or expect anything, I never even implied we should torture the dunce.

But I think the announcement that we "got him to talk by normal means" is as politically motivated as "that torture really worked".

[JustMe]

Richard Reid is doing three life sentences, four 20 year sentences, and an additional 30 years, all consecutive.

That may be so, but keep in mind that Marty is much, much more knowledgeable than you are with a much, much more mature outlook in life regarding everything from torture (let's do it!) to the law (he'll get off!) to net neutrality (it's a leftie commie conspiracy!).

[Hogan]

But I think the announcement that we "got him to talk by normal means" is as politically motivated as "that torture really worked".

Of course, the first one also has the virtue of actually being true. If you consider that a virtue.

[Nombrilisme Vide]

"What, pray tell, were you hoping they'd be getting out of the longed-for "ongoing interrogation"?"

I don't want or expect anything, I never even implied we should torture the dunce.

That's a technically true statement. It's also a complete red herring. I never mentioned torture; the "ongoing interrogation" I referenced would have been your contrast of what he'd be experiencing if he were treated and held as a military "detainee" rather than a criminal whose lawyer could recommend he not cooperate. No mention of torture whatever.

You didn't imply you thought he should be tortured, sure. I certainly never claimed you did. But you plainly implied he should be treated as a "detainee" rather than a criminal when you mournfully clucked your tongue at the ineffectualness of law enforcement in extracting information from suspects, in contrast to those held by the military so they could be interrogated in an ongoing and (chronologically) unlimited manner.

[Nombrilisme Vide]

Is it bad that I find "16gb usb stick"'s quasi-topical automated blogspamming vaguely fascinating? I suppose it's the technical and novelty aspects which will get old soon enough, but...

[Marty]

I implied nothing I didn't say.

[Nombrilisme Vide]

Marty, when you adopt a scornful tone regarding the efficiency of how someone's being treated, while pointing out that there exists another way to treat them that would avoid this inefficiency, you bloody well are implying that the latter course of action is preferable to the former. You may (unconvincingly) claim you didn't mean to, but a straightforward reading of what you wrote cannot avoid interpreting what you wrote as implying a preference that he not be treated as he is being treated. To claim otherwise requires either disingenuousness or profound ignorance of how people actually use language.

...though on re-reading your six-word comment, I'm no longer even sure you're claiming you didn't imply he shouldn't be treated as a criminal. "I implied nothing I didn't say" is a fairly opaque statement; it reveals very little of what you feel you did and did not communicate. Though if you aren't denying that, your red-herring charge of being accused of wanting him tortured looks even worse, as you were inventing it from whole cloth in order to disagree with an observation you actually agreed with (and/or to indignantly claim slanderous persecution).

Way to keep on keeping us folks honest.

[Nombrilisme Vide]

That last line was unnecessary. Apologies.

[trizzlor]

While I agree with your overall point, I'm not convinced of your implication that: either we should provide suspected foreign nationals with the same rights that are offered suspected US citizens, or we should provide enemy combatants who do not follow the rules of war the same rights as those who do.

First, I'd like to make clear that I abhor torture, but outside of that, I do feel that rights of Miranda and attorney (I can't think of anything else that hinders Goldfarb's so-called "Army Field Manual techniques" but doesn't qualify as EIT) are special privileges offered to US citizens in return for certain obligations rather than inalienable human rights. Am I correct in reading your (or the progressive) position to be that the underpants bomber should have all the rights of a citizen? Practically, what is the problem with treating such suspects in civilian court but without granting them full rights; thus not romanticizing them as soldiers but also not promoting them to citizen status. In other words what are the negative side-effects of not Mirandizing Abdulmutallab?

[elm]

trizzlor: The courts have disagreed with your interpretation at every turn. Certain provisions in the U.S. Constitution apply specifically to U.S. citizens (principally with regards to voting or qualifications for holding office). But the plain text of the Fifth Amendment (the basis for the Miranda notification) refers specifically to "persons" (not citizens).

Those rights have always applied to citizens, legal immigrants, persons visiting on temporary visas, and even illegal aliens. It shocks and offends me that you would prefer to exclude three of those groups.

The problem with arbitrarily stripping a person of rights is that there is no bright line separating Abdulmutallab from your or from me. In the eyes of the law, he stands accused of certain crimes (heinous ones), but he was not captured on any battlefield, nor was he a member of the U.S. military.

If Abdulmutallab may be compelled to testify against himself, then so may you.

Nobody has, to my knowledge, argued that he should have the rights of a citizen: viz. to vote and stand for public office.

[Tyro]

I do feel that rights of Miranda and attorney ... are special privileges offered to US citizens in return for certain obligations rather than inalienable human rights.

But non-citizens get those things, too, when they are arrested. Our civil procedures and laws are not rights or privileges granted with citizenship. Rather, they are restraints on the government's power to ensure that everyone gets a fair trial and that our laws actually mean something. It's a bit much to expect that the government can be trusted to go hogwild when it comes to non-citizens but will be act appropriately and fairly and with due process once our proof of citizenship is produced.

The crotchbomber doesn't have citizenship rights: he cannot vote and he has no right to stay in the United States. However, US criminal procedures require that certain standards of justice be followed in order to take his other rights away.

[elm]

I would also point out that Goldfarb speaks of the effectiveness of "enhanced interrogation techniques". Those include waterboarding, induced hypothermia, sexual humiliation, and other techniques that have long been held to be torture. Interrogators killed a number of prisoners.

It's also not clear that Goldfarb knows the contents of FM 2-22.3 (the current DoD Field Manual on interrogation). It explicitly forbids certain forms of torture, it recommends that the interrogator build a rapport with the source, and states:

8-77. Interrogation does not mean a hostile relationship between the HUMINT collector and the source. In fact, most interrogation sources (90 percent or more) cooperate in response to the direct approach.

From looking through the document, it's clearly just the incorrect guidebook to use when preparing for a prosecution or even to obtain information about Abdulmutallab's contacts. The police and FBI successfully deal with those areas every single day.

[Eric Martin]

trizzlor,

In addition to what elm and Tyro pointed out about the applicability of our laws, this part is highly problematic if used as a criteria for denying rights:

...or we should provide enemy combatants who do not follow the rules of war the same rights as those who do

The problem is, you would be making that determination before the trial. So, you deny the rights of anyone suspected of being an enemy combatant. That could be me or you for the record. Further, there have been hundreds of innocent people so designated and kept without trial or proceeding at Gitmo for years. That doesn't redound to our benefit, or speak highly of our principles.

[Carleton Wu]

I do feel that rights of Miranda and attorney ... are special privileges offered to US citizens in return for certain obligations rather than inalienable human rights

Not to pile on, but these rights are either necessary to ensure fair treatment by the legal system or they aren't. If they are, then we need to recognize their universality (or argue explicitly that we ought to treat foreigners via an unfair system). If they aren't, then they're luxuries and we need to stop giving them to drug dealers, murderers, and me. And you.

[trizzlor]

First of all, you're all right in pointing out that Miranda and the 5th/6th Amendments apply to all persons. And it seems like the main argument in favor of this is that either these rights are universally human or that it acts as a check against government incursion.

The first point is a fundamental difference of opinion that I doubt we can address; perhaps it's callous of me, but I do not see it as inhumane to withhold Miranda or an attorney from non-citizens in extenuating circumstances. In fact, after some research, it seems that there are quite a number of exceptions to Miranda which allow it to be waived for all persons in instances of "public safety" concern. This seems to be a fair compromise (as long as "public safety" is not loosely defined) to address situations such as suspected terrorism, and I'm surprised it hasn't been brought up.

To the second point, as you have already pointed out, there are quite a few rights that are granted to citizens but not non-citizens. Moreover, non-citizens are even treated differently in criminal matters, where they can be deported/punished more severely. None of this has led to the erosion of our rights.

The few remaining points:

@Eric Martin: "The problem is, you would be making that determination before the trial. So, you deny the rights of anyone suspected of being an enemy combatant."

You're absolutely correct, though certainly a speedy civil conviction on such a charge can precede a military tribunal for subsequent charges. My main concern is encouraging asymmetric/unconventional warfare by treating it exactly like regular uniformed military combat. Though I'm certainly open to the argument that anything we do in punishing terrorism/insurgency can only encourage it so we should just attack it through other means.

@elm: "I would also point out that Goldfarb speaks of the effectiveness of "enhanced interrogation techniques"."

Goldfarb seems completely clueless on what the Field Manual actually provides; either he truly believes it's a secret window into the Muslim soul that only the military posses, or he's just lying about it to push crypto-torture.

~~~

My main concern is that the argument is never really laid out in this way in the media. I watch the Ackerman/Buchanan shouting match and Spencer's defense was the feeble claim that "Abdulmutallab has already been indicted in federal court" and that "We've done this before to other terrorists". I know it may sound childish, but simply saying that the constitution unquestionably protects such individuals and that while here it may be obvious that the suspect is a terrorist, in other situations it's not and we can't apply the law piecemeal would forcefully make the point. Of course, it doesn't help that Obama himself is not completely clear on weather these are civilians or soldiers.

[Nombrilisme Vide]

In fact, after some research, it seems that there are quite a number of exceptions to Miranda which allow it to be waived for all persons in instances of "public safety" concern. This seems to be a fair compromise (as long as "public safety" is not loosely defined) to address situations such as suspected terrorism, and I'm surprised it hasn't been brought up.

I'll bite. How, exactly, is it a matter of "public safety" to deny suspects charged with anything deemed "terrorism" civil rights?

I do presume you mean all suspects, not just foreigners. Because if not your argument seems fairly indefensible - if public safety is threatened by granting alien terror suspects civil rights, it'd be no less threatened by letting US nationals retain rights when thusly charged. Not, mind you, that I exactly see why public safety is threatened in these instances, barring ridiculous 24-esque scenarios.

[trizzlor]

I'll bite. How, exactly, is it a matter of "public safety" to deny suspects charged with anything deemed "terrorism" civil rights?

One of the cases where this exception has been used is a criminal who hid his gun in a grocery store and the police needed to find it as soon as possible. Is that really more severe than interrogating an alleged terrorist immediately after a foiled attack to determine if there are other simultaneous attacks occurring (as has been the case in the past). Regardless, my point was that the Supreme Court does not see Miranda as an inalienable right ... I personally would prefer if that were only the case for non-citizens.

[liberal japonicus]

First of all, you're all right in pointing out that Miranda and the 5th/6th Amendments apply to all persons.

I'm really not sure who is arguing what here, but the above is not correct

Immigration agents are not required to obtain warrants to detain suspects. The agents also have broad authority to question people about their immigration status and to search them and their homes. There are no Miranda rights that agents must read when making arrests. Detained immigrants have the right to a lawyer, but only one they can pay for.

While criminal suspects are generally sent to jails near the courts that hear their cases, immigration agents have discretion in deciding where to hold immigrants detained for deportation. Many suspected illegal immigrants who were detained in Nassau County, for example, were quickly moved to York, Pa., distant from family and legal advice.

You may wish to adjust your arguments accordingly.

[Tyro]

Miranda warnings apply specifically to what statements made by a suspect are admissable in court during an interrogation. I do think
some people just get offended that someone not from our country who hates our country "gets" treated by the law the same as anyone else when he comes to court. But that is the problem with due process and concepts of equal justice under law-- it applies even to those people we don't like and those who we decide, in our infinite wisdom, are not "deserving."

Next, immigration is different specifically because of the fact that aliens have no inherent right to be here in the first place beyond the permission granted by the US government. And here it provides an excellent showcase for what happens when you allow agents wide discretion to make whatever decisions they choose: it becomes an absolute mess.

[elm]

liberal japonicus: I disagree with your interpretation.

The Fifth and Sixth amendments apply to criminal courts and criminal cases. It is simply a matter of fact that immigration cases and immigration courts operate under civil administrative law and not criminal law. The article you linked states that explicitly and provides examples of what happens when the system lacks those protections.

In criminal court, Fifth and Sixth Amendment rights apply to noncitizens exactly as they do to citizens.

trizzlor: "One of the cases where this exception has been used is a criminal who hid his gun in a grocery store and the police needed to find it as soon as possible."

Perhaps you misunderstand Fifth Amendment protections under Miranda.

In the case you describe, the court should exclude the use of that statement from evidence. As I neither a lawyer nor an expert on rules of evidence, I don't know if the defense could exclude a gun found as a result of a Miranda-violating questioning.

Failure to issue a Miranda warning is not a "get out of jail free" card.

(In short: I agree with what Tyro said)

[liberal japonicus]

In criminal court, Fifth and Sixth Amendment rights apply to noncitizens exactly as they do to citizens.

I tend to view the system of law as a overall system, not as separate systems. Claiming that noncitizens don't have certain rights because the crime that they commit (which could be invoked when they have done something as simple as jaywalking or not making a complete stop for a right turn on red) lies under a separate system of laws seems like a lacuna rather than an example of how morally fair the law is.

[elm]

lj: I do not argue that immigration law is fair. In my opinion it's executed in an abusive fashion. While the state must have authority to control immigration, the enforcement of these laws has been heavy handed and not fair.

But that's not relevant to the discussion at hand. Umar Farouk Abdulmutallab face criminal court. Since he's in criminal court, the Sixth Amendment and relevant parts of the Fifth Amendment will apply to him. They will apply to him exactly as they would apply to a citizen.

trizzlor's original reply to this thread stated: "I do feel that rights of Miranda and attorney are special privileges offered to US citizens". This is the statement that I original responded to.

Your second sentence confuses me, please correct me if I'm wrong, but I understand it like this:
1) A noncitizen resident may be deported for committing a crime.
2) In a deportation case, the defendant does not enjoy the Sixth Amendment right to a speedy trial nor the many Fifth Amendment rights.

Is that correct?

If so, I would point out that there's a step missing:

1.5) The noncitizen must be convicted of the crime in question in a criminal court. In this venue that person enjoys the same protections as a citizen accused of the same crime.

Treating the law as one overall system is not pragmatic. It is a set of systems and the rules can differ between them. Certain rights apply to some systems and not others (it's explicitly stated that way in the Constitution).

[liberal japonicus]

There seems to be a contradiction. You acknowledge that immigration law is not 'fair', yet don't see how this unfair application doesn't then impinge on 5th and 6th amendment rights in other cases. My point is that if it does impinge on these rights in other cases, one may claim that both citizens and non citizens enjoy equal protection, but in actual fact, they don't. To draw a parallel, this becomes the equivalent of a 'separate but equal' doctrine. I understand that pragmatic concerns lead to different systems and this is unavoidable, but the failure to grant certain minimal rights to people labeled as illegal immigrants (and note that anyone who is not a citizen can be labeled as an illegal immigrant can then have these rights taken away) is, to my mind, not an unavoidable pragmatic consequence, but a failure to view some rights delineated in the Constitution as human rights rather than the rights of citizens. As I said, I really couldn't keep track of who was making what argument in this thread, but I think a claim of non-citizens receiving all the rights of citizens when it can be easily avoided thru the invocation of a second administrative system should be qualified a little more carefully.

[elm]

I don't see such a contradiction. Fairness and constitutionality are separate topics. I don't like that unfairness and I think it's an affront to human dignity, but I believe that Fifth and Sixth Amendment arguments are just not likely to work well in preventing it.

(For the record, I've had friends and extended family affected by the INS/ICE bureaucracy, though never for deportation. I don't like it one bit. The rules and regulations are so numerous, petty, and unevenly enforced that I doubt a single person complies with them all. The INS/ICE make the IRS look friendly, no doubt in part because they deal almost exclusively with noncitizens.)

Even if the Sixth Amendment applied to deportation cases, it wouldn't help much. If I recall correctly, the Supreme Court's interpretation of "speedy trial" is "about one year, maybe". A person facing deportation has two choices: either sit in detention and wait for a trials and appeals or accept the deportation. Assuming you would be deported to a non-hellhole country, it's irrational to fight the deportation -- that only leads to a long, expensive, long-shot fight.

I'll swerve waaay off topic here and say that to make that situation less unfair I'd permit the immigrant to continue his life while awaiting a ruling. In that case, the state would need some security against fleeing (something like bail), but I don't have a proposal for that. That would be the responsibility of Congress, however, and I doubt it would make a good constitutional case.

Back on subject: None of the above has anything to do with Umar Farouk Abdulmutallab. The U.S. Government seeks to imprison or execute him. To do so, it must try him in criminal court and the protections of the Fifth and Sixth Amendment do apply to him. Even if that prosecution fails, the government can require him to leave, as he is a nonresident nonimmigrant visitor.