Family Values

by Eric Martin

Amazingly, experts in interrogation at the FBI are getting results in their interrogations of the underpants bomber.  This, despite not being tortured, not being subjected to military commision's rules and regulations, despite his being mirandized and despite having an attorney present.  None of this should come as a surpirse or even warrant highlighing under normal circumstances, and yet in the era of the pro-torture, anti-due process Republican Party (and its Democratic allies), this amounts to a newsworthy event if for no other reason than to silence misinformation and other pernicious theories that have incubated divorced from facts.  From the New York Times:

Umar Farouk Abdulmutallab, the Nigerian man accused of trying to blow up a jetliner bound for Detroit on Dec. 25, started talking to investigators after two of his family members arrived in the United States and helped earn his cooperation, a senior administration official said Tuesday evening.

Mr. Abdulmutallab, 23, began speaking to F.B.I. agents last week in Detroit and has not stopped, two government officials said. The officials declined to disclose what information was obtained from him, but said it was aiding in the investigation of the attempted terrorist attack.

“With the family, the F.B.I. approached the suspect,” the senior administration official said, speaking to reporters at the White House on the condition of anonymity because of the pending legal case. “He has been cooperating for days.”

It is highly doubtful that the family would have been brought in to the process, let alone cooperated, if Abdulmutallab was being tortured, or even kept within the quasi-military justice system.  Would military interrogators have even reached out to the family in the first place?  Luckily, the experts are in charge.  As Matt Yglesias argues:

It’s true that as an investigative technique “convince the guy’s family to convince him to cooperate” isn’t quite as bad-ass as “use Khmer Rouge torture tactics against him.” On the other hand, the non-torture way actually produces reliable information. And note that these are really inconsistent ideas. A family that has confidence in the basic fairness of the US criminal justice system is prepared to help the FBI secure cooperation from their son. A family that believes the US government holds suspects in “black sites” where they’re tortured and/or tries them in kangaroo courts is much less likely to cooperate.

But most of all, when you’re faced with serious problems you want to rely on seasoned investigators and their proven investigative techniques. You don’t take a problem “more seriously” by handing it over to the military or the CIA. The you take a problem seriously by having it addressed by the appropriate agencies. If we’d handled this in the blood-soaked manner preferred by the right, who knows what kind of nonsense information people would be sorting through right now.

Right.  As the torture of KSM, al-Libbi (connecting al-Qaeda to Iraq) and Zubaydah show, torture leads the tortured to concoct any manner of tale in order to get the torturer to stop.  Once the truth has been exhausted, to the extent it is offered at all, the tortured prisoner will resort to falsehood to satiate the torturer's desire for certain predetermined information.  But the torturer cannot discern the difference between truth and convenient lie, rendering the entire output unreliable.  At considerable cost to our image and effort to garner intelligence and cooperation from civilians at large.

Adam Serwer makes this a teaching moment, using the development of this case to puncture several pro-torture, anti-due process myths.  A sample:

Mirandizing a suspect prevents intelligence from being collected. Clearly not the case, as Abdulmutallab has continued talking to investigators after being mirandized. Interrogating someone without mirandizing them means that you can't use that information in court, though it's still usable as intelligence.

The FBI stopped interrogating Abdulmutallab so they could mirandize him. No. As the LA Times reported, the FBI decided to read Abdulmutallab his rights after he stopped talking.

Putting an "enemy combatant" like Abdulmutallab in the criminal justice system is unprecedented. False, as the Bush administration did it with nearly 150 terrorists convicted in civilian courts over eight years. Most recently, Bush-era CIA Chief Michael Hayden wrote an op-ed criticizing the decision to put Abdulmutallab in the criminal justice system, even though it was standard practice under Bush. A recent example is Bryant Vinas, an al-Qaeda recruit captured in Pakistan in 2008, who as part of a plea deal has reportedly provided a "goldmine" of intelligence. Hayden was CIA chief at the the time and said nothing, because the practice was uncontroversial.

We would have gotten all this information more quickly if we had just tortured him. Unlikely, and there would have been substantial downsides. Part of interrogating a suspect is verifying that information is true, and that takes time whether someone is being tortured or not. But if we had tortured Abdulmutallab, it's unlikely that his family would have played such a key role in his interrogation. Also, the information he gave wouldn't have been as reliable. Treating him humanely shows the world that it can trust the United States and encourages Muslims who may have important information to come forward.

These are lessons that the American people need to take stock of.  Along those lines, it would be helpful if the Republican Party, and certain Democratic accomplices - even the Obama administration in certain contexts - would actually lead rather than demagogue or allow themselves to be seduced by the alluring, yet false, expedients that inhabit what Cheney aptly termed the "dark side."  Of course, Cheney uttered the phrase approvingly.

Comments

[von]

Aren't both sides -- including you, Eric -- reading far too much into this single example? How do we know that Abdulmutallab presents the rule, as opposed to an exception to the rule (or the exception that proves the rule -- at least with regard to terrorism suspects that don't have Abdulmutallab's family connections or psychological profile).

I think we all need to take a deep breath. Not every event is a pawn to use in the service of a political agenda.

[Jesurgislac]

"Treating him humanely shows the world that it can trust the United States and encourages Muslims who may have important information to come forward."

That's optimistic.

Ending the torture at Guantanamo Bay, closing down Guantanamo Bay (and not simply to transfer the captives elsewhere!), and prosecuting the torturers - that's what's needed for the world to "trust the United States".

Oh, and admitting the Bush DoJ committed a crime when it had Mahar Arar kidnapped and sent to Syria to be tortured, and instituting an investigation followed by prosecution, that would be another good step.

Obama's whole shtick of imitating Carter and Clinton by refusing to consider prosecuting the criminals? God knows what he thought he was going to get out of it: it's not as if it worked too well for either President.

[Eric Martin]

Von: the reason that we know that this is not a one-off, isolated incident is because of the reams of data stretching back hundreds of years. Which overwhelmingly supports one side of the argument, and overwhelmingly undermines the other.

The first paragraph tried to convey this notion: these are not new, untested theories. These are lessons that were learned repeatedly throughout history. World War II was an important recent example for the US, but the FBI has had best practices protocol in place for decades since. Read Marine Major Sherwood Moran on the subject.

This is only a controversey because the Bush team went off the path and delegated powers to amateurs (literally) in search of expedients on the dark side, which rightly horrified FBI interrogators and military interrogators who knew what they were doing.

With Abdulmutallab, it was his family. With Zubaydah, it was a deep knowledge of the Koran. The trigger changes depending on the suspect, but the method remains the same. Because it is the most effective.

[Jesurgislac]

von: Not every event is a pawn to use in the service of a political agenda.

Actually, I take my previous comment back a little:

Given that the US cannot be trusted to behave within the law when dealing with a person accused of terrorism, especially not a Muslim/not a US citizen, it is is a very big deal when the US does follow the law.

Given the behavior of the Bush regime and Obama's lack of enthusiasm about investigating and prosecuting their crimes, every time the US is dealing with a terrorist suspect, especially one who is a Muslim/is not a US citizen, this is an item on the political agenda: will the US follow the law and its international obligations under the various treaties? Or will it flout the law, as it has done so often before with complete impunity?

The US is a rogue nation. Any nation whose citizens have been kidnapped and tortured by the US with the excuse that they're "terrorists", has a valid reason to watch closely what the US is doing now with "terrorist suspects".

[Eric Martin]

On Major Moran and his work in interrogating Japanese prisoners during WWII, whose writings are considered a guide to interrogation:

...despite the complexities and difficulties of dealing with an enemy from such a hostile and alien culture, some American interrogators consistently managed to extract useful information from prisoners. The successful interrogators all had one thing in common in the way they approached their subjects. They were nice to them.

The brutality of the fighting in the Pacific and the suicidal fanaticism of the Japanese had created a general assumption that only the sternest measures would get Japanese prisoners to divulge anything. Moran countered that in his and others' experience, strong-arm tactics simply did not work. Stripping a prisoner of his dignity, treating him as a still-dangerous threat, forcing him to stand at attention and flanking him with guards throughout his interrogation - in other words, emphasizing that "we are his to-be-respected and august enemies and conquerors" - invariably backfired. It made the prisoner "so conscious of his present position and that he was a captured soldier vs. enemy intelligence" that it "played right into [the] hands" of those who were determined not to give away anything of military importance.

I often tell a prisoner right at the start what my attitude is! I consider a prisoner (i.e. a man who has been captured and disarmed and in a perfectly safe place) as out of the war, out of the picture, and thus, in a way, not an enemy...Notice that...I used the word "safe." That is the point: get the prisoner to a safe place, where even he knows...that it is all over. Then forget, as it were, the "enemy" stuff, and the "prisoner" stuff. I tell them to forget it, telling them I am talking as a human being to a human being.

Begin by asking him things about himself. Make him and his troubles the center of the stage, not you and your questions of war problems. If he is not wounded or tired out, you can ask him if he has been getting enough to eat; if he likes Western-style food...You can ask if he has had cigarettes, if he is being treated all right, etc. If he is wounded you have a rare chance. Begin to talk about his wounds. Ask if the doctor or corpsman has attended to him. Have him show you his wounds or burns. (They will like to do this!)...

On [one] occasion a soldier was brought in. A considerable chunk of his shinbone had been shot away. In such bad shape was he that we broke off in the middle of the interview to have his leg redressed. We were all interested in the redressing, in his leg, it was almost a social affair! And the point to note is that we really were interested, and not pretending to be interested in order to get information out of him. This was the prisoner who called out to me when I was leaving after that first interview, "Won't you please come and talk to me every day." (And yet people are continually asking us, "Are the Japanese prisoners really willing to talk?")

More here

[Jacob Davies]

Not every event is a pawn to use in the service of a political agenda.

"Not torturing people" is not a political agenda, well, except in the sense that the Eighth Amendment is a live political issue.

[Marty]

I am convinced, again, that we should never torture anyone.

[Turbulence]

Well Marty, on the plus side, that means I think you're a decent human being. On the minus side, that means that you can never ever have any future in conservative politics in this country.

[Eric Martin]

Yeah. Marty just got disqualified from major office as a Republican.

Even Scott Brown came out in favor of torture - rather stridently I would add.

[Eric Martin]

I would add, also, Marty (and correct me if I'm wrong), you don't have as much of a problem voiding certain sections of the Constitution for terror suspects - at least, terrorist suspects that aren't US citizens.

[Carleton Wu]

I think it's important to separate the "is torture effective" and "is torture immoral" arguments; it's somewhere between difficult and impossible to hold both simultaneously.
This does that, and it's good- if we know that torture is ineffective, we don't even need to reach wondering whether it's immoral.

[von]

Von: the reason that we know that this is not a one-off, isolated incident is because of the reams of data stretching back hundreds of years. Which overwhelmingly supports one side of the argument, and overwhelmingly undermines the other.

That's just wrong (or, at least, not supported in your post). We don't have reams of data stretching back hundreds of years showing that Mirandizing a terrorism suspect and allowing him access to a lawyer results in a complete interrogation in any case. Much less every case.

You seem to be conflating this issue with the question of torture. Yes, we have plenty of data that torture doesn't work. That's why I oppose torture.

But we have zero data -- nothing -- to support the specific course of action here. It may very well have been a mistake to treat this matter as an ordinary criminal case rather than as an act of war by a plainsclothes agent.

[von]

(I should add that I oppose torture for more reasons than just "it doesn't work"; but, to reiterate, torture isn't at issue here.)

[Ugh]

It may very well have been a mistake to treat this matter as an ordinary criminal case rather than as an act of war by a plainsclothes agent.

What is al Qaeda's official uniform, anyway?

[Eric Martin]

We don't have reams of data stretching back hundreds of years showing that Mirandizing a terrorism suspect and allowing him access to a lawyer results in a complete interrogation in any case. Much less every case.

My bad on weaving in and out of torture and miranda/due process.

Nevertheless, we do in fact have some data on mirandizing suspects, and getting intel via interrogation afterward. And the evidence is that we get valuable intel and that miranda doesn't really interfere. In the case of Vinas, a "goldmine." See, also, Richard Reid, Lindh, Moussaoui and others.

It may very well have been a mistake to treat this matter as an ordinary criminal case rather than as an act of war by a plainsclothes agent.

We also have data on that propostion. The data reads: civilian courts are much, much, much better in terms of getting convictions - and the convictions themselves tend to be for longer sentences.

[von]

What is al Qaeda's official uniform, anyway?

Exactly the point, Ugh. We don't stop being in a war just because one side refuses to put on uniforms. It is not clear to me that this is a matter for the civilian courts at all, much less that the civilian courts are (objectively) the best place to be. Major Moran, after all, was both humane and effective in his efforts against the Japanese, none of whom were read their Miranda rights (which didn't exist at the time) or who received lawyers.

And the evidence is that we get valuable intel and that miranda doesn't really interfere. In the case of Vinas, a "goldmine." See, also, Richard Reid, Lindh, Moussaoui and others.

I am more concerned about a lawyer interfering. That's his/her job.

We also have data on that propostion. The data reads: civilian courts are much, much, much better in terms of getting convictions - and the convictions themselves tend to be for longer sentences.

But a conviction isn't the goal in a war. Intelligence, and defeating the enemy, is.

[Turbulence]

I am more concerned about a lawyer interfering. That's his/her job.

Let's assume there are two kinds of terrorism suspects. Type (1) consists of those who, like the underwear bomber, have a huge mass of overwhelming evidence against them. Type (2) consists of those who have relatively little evidence against them. If we're talking about halfway decent lawyers, the lawyers for type (1) suspects are going to strongly counsel their clients to immediately spill everything they know in the desperate attempt to get some leniency from the sentencing judge. After all, no matter how many lawyer games you play, there's just no way the underwear bomber does not get convicted.

For type (2) defendants, their lawyers will interfere, but that's a good thing. After all, we Americans are completely irrational when it comes to terrorism. We've repeatedly tortured and killed innocent people based on zero evidence just because we were looking for a terrorist to revenge ourselves upon. Given that history, the best course of action is to have lawyers and judicial processes to interfere with the horrific abuse that we call interrogation. I mean, even when we're not torturing people, we still do all kinds of crazy s*it to shatter their minds and destroy their sanity. I think, as a matter of basic human decency, that no one should be subjected to such horrors absent overwhelming evidence. So what exactly is the problem with having lawyers try to interfere in such cases?

Maybe things would be different for me if we did not have this significant history of abusing random people just because we were scared, but we do have that history. As a conservative who believes that actions have consequences, I can't ignore that. This is difficult to explain to people who aren't conservative, so maybe you'll never understand.

[CharleyCarp]

I would be a lot more sympathetic to the pro-military interrogation/detention side of the public debate if the military stopped hiding behind the unreviewability of their classification decisions, and started complying with the law on classification.

Reveal what actually went on -- what little was learned and what damage was done -- and all but the most fearful would be willing to think a little more critically.

Instead, we have the entire military side of the thing classified, and advocates are free to make all manner of wild claims about what was learned and how. And to leak snippets out of context, without fear of discipline, or even of being called on releasing a snippet out of context.

Von, I think that virtually all of the clamor to put this particular man into a different detention regime is politically motivated.

[Eric Martin]

We don't stop being in a war just because one side refuses to put on uniforms. It is not clear to me that this is a matter for the civilian courts at all, much less that the civilian courts are (objectively) the best place to be.

No, but we don't end up being in a war just because someone decides to use a rhetorical device to describe a security issue that has always been treated as a law enforcement/intel issue. War is not only the wrong rhetorical framework in terms of enhancing the stature of terrorists which aids them in recruitment, it is also an unrealistic framework for crafting policy. For example, who declared war? When does said war end? Etc.

I am more concerned about a lawyer interfering. That's his/her job.

Not necessarily. A lawyer's job is to sometimes get the best possible plea deal for their client. And, regardless, the interrogation results are not to be used as evidence, but for intel, so the lawyer's concerns are not as triggered.

Regardless, the data suggests that the presence of a lawyer is not a hindrance.

But a conviction isn't the goal in a war. Intelligence, and defeating the enemy, is.

Right, and the evidence is that intel gathered by professional, FBI interrogators in the civilian context is of more utility.

[Jesurgislac]

Carleton Wu: I think it's important to separate the "is torture effective" and "is torture immoral" arguments; it's somewhere between difficult and impossible to hold both simultaneously.

No, it's not:

Now, if I argue – as I would – that I oppose taking cats and boiling them alive: that this is unacceptable under any circumstances (even supposing a person were starving hungry enough to eat a cat, they could kill the cat before boiling the meat…): that I see this as objectionable and disgraceful behavior -

- I would also point out that it’s completely pointless, since no matter how many black cats they boil to death, they’ll never find even one magic bone of invisibility, and therefore arguing how useful invisibility would be is futile.

Exactly so with torturing prisoners for information.

[Jesurgislac]

Von: It may very well have been a mistake to treat this matter as an ordinary criminal case rather than as an act of war by a plainsclothes agent.

Since the US and Nigeria are not at war, there was no legal way to treat this as an act of war. Of course that wouldn't have stopped Bush & Co in the past from pretending that anyone they like can be called an "illegal combatant" and deprived of all legal rights including those of a prisoner of war, but for some reason, Von, I'd supposed you were against the US committing crimes just because it can.

[Carleton Wu]

Jes,
It's not difficult if the arguments are trivial, as you present. When they aren't, it's very easy to get caught in loops. For example, in response to Eric's post, someone might try to derail the conversation to morality by short-circuiting the existing examples with a hypothetical, 24-ish scenario. The debate then becomes whether the scenario is realistic, or whether torture even in a contrived scenario where it might be useful is wrong.
Much better to stay in one place: does it work? No, it does not. Or, if debating whether it's immoral, to debate that point by itself, without questions of efficacy.

[Carleton Wu]

It may very well have been a mistake to treat this matter as an ordinary criminal case rather than as an act of war by a plainsclothes agent.

Curious whether you think that this doctrine can be applied to US citizens as well. And, if so, whether there should be a dividing line between domestic terrorist organizations and international ones.

[Jesurgislac]

For example, in response to Eric's post, someone might try to derail the conversation to morality by short-circuiting the existing examples with a hypothetical, 24-ish scenario.

Yeah, I've seen that happen when a pro-torture advocate on Slactivist came up with the argument that since he'd seen torture work on TV (and could cite examples such as you suggest) it was necessary to argue about whether it would work in the real world.

I disagree: I think it's important to keep pointing out that torture is exactly like boiling black cats alive to obtain the magic bone of invisibility: it's both unacceptably cruel and utterly pointless.

[Jacob Davies]

Full agreement with Jes at 3:09.

The moral and practical concerns are inseparable and mutually-reinforcing. That torture does not actually work is further evidence that it is wrong; that it is wrong is also one of the reasons it does not work.

[Carleton Wu]

That torture does not actually work is further evidence that it is wrong; that it is wrong is also one of the reasons it does not work.

You mean, it doesn't work bc of the world's perception of it? Otherwise, I don't see how that makes sense- it could be immoral and still effective at extracting information.

[Ugh]

von: Exactly the point, Ugh. We don't stop being in a war just because one side refuses to put on uniforms.

Yes but I guess I'm wondering about this whole concept of "we're at war with al Qaeda." Suppose al Qaeda did wear uniforms, and attacked only armed military personnel (both now and on 9/11) after openly declaring war on us, killing hundreds of US armed forces. At some point, we capture OBL, Zawahiri, and thousands of al Qaeda fighters. POWs all?

And if OBL officially surrenders, marking the end of hostilities, he (along with everyone else) goes free?

[Marty]

"I would add, also, Marty (and correct me if I'm wrong), you don't have as much of a problem voiding certain sections of the Constitution for terror suspects - at least, terrorist suspects that aren't US citizens."

I have less of a problem in establishing what constitutional protections apply to citizens versus non-citizens. I would suggest that this is not a radical right or left position.

I am not fond of terrorists, but I certainly find the ones arrested on US soil to be more reasonably problematic, from a Constitutional perspective, than those captured in a war zone.

[Eric Martin]

Marty,

FYI, the Supreme Court has had a long history of ruling that due process protections apply to all persons, not just US citizens.

See, here.

Sadly, it appears to be a relatively new position, whose proponents are predominately on the right. And it is fairly radical in that it upends lengthy precedent and established Constitutional interpretation.

[Jesurgislac]

but I certainly find the ones arrested on US soil to be more reasonably problematic, from a Constitutional perspective, than those captured in a war zone.

The "war zone" being the entire rest of the world?

People have been kidnapped by the US from countries which are not war zones/with which the US is not at war.

You seem to still be clinging to the idea you promoted back in January, that the US's kidnap victims are enemies in wartime because they have been accused of terrorism.

[Tom Maguire]

First, the real choice was not between Miranda and torture; the real choice was between Miranda and the bomber's rights as an enemy combatant in the military justice system. Interrogation would be subject to the Army Field Manual. Or have we forgotten that the Congress passed a law and Obama won the election?

Secondly, this merits a smile:

"If we're talking about halfway decent lawyers, the lawyers for type (1) suspects are going to strongly counsel their clients to immediately spill everything they know in the desperate attempt to get some leniency from the sentencing judge."

So let's see - some Nigerian who seems to have a bit of antipathy towards America gets a court-appointed attorney. That attorney advises him that the case against him is dire and he better cooperate. And voila! The subject talks! Because he trusts his attorney and stopped hating America, or at least, all Americans. Or has seen a lot of "Law and Order" back in the home country. Or something.

But if two military interrogators play good cop / bad cop and advise him that the case against him is dire and he will be in for a long sentence unless he cooperates, well, he will sit like a statue, because.... well, because.

I think I get it. Well, not really.

[Tom Maguire]

"FYI, the Supreme Court has had a long history of ruling that due process protections apply to all persons, not just US citizens. "

Roosevelt is rolling in his grave. Enemy combatants and spies don't get the same rights as US citizens even when arrested in the US, as these eight German spies found out in the summer of 1942.

Roosevelt created a military commission and six were executed within two months of their arrest.

Of course, Roosevelt also interned the Japanese, but I don't think that makes him a right-winger either.

[Jesurgislac]

Enemy combatants and spies don't get the same rights as US citizens

A Nigerian who wanted to be suicide bomber (and failed) is neither an enemy combatant (since US Congress has not declared war on Nigeria, nor vice versa) nor, pretty self-evidently, a spy.

Your claim that Roosevelt would be "rolling in his grave" because the citizen of a friendly country who had attempted to commit a grievous crime, has the usual legal rights of the accused - no matter how considerable the evidence against them - is based on what, exactly?

Of course, Roosevelt also interned the Japanese, but I don't think that makes him a right-winger either.

No, if he'd been a right-winger, he'd have had them tortured and murdered.

[chamblee54]

I used this story today, and combined it with a video about the shaky tactics used by police in an "interview". While police do not use torture, it is sometimes a fine line.
This was illustrated by pictures from a library database of life in 1950, including the watermelon queen of Georgia. This is all at my blog .

[fledermaus]

"That attorney advises him that the case against him is dire and he better cooperate. And voila! The subject talks! Because he trusts his attorney and stopped hating America, or at least, all Americans. Or has seen a lot of "Law and Order" back in the home country. Or something.

But if two military interrogators play good cop / bad cop and advise him that the case against him is dire and he will be in for a long sentence unless he cooperates, well, he will sit like a statue, because.... well, because."

Cops are good at getting people to talk, even after midanda rights have been read. The whole idea that you need to bring in the spooks and waterboarding and Uzbeckistan black sites to get info.

But as a criminal defense attorney I do chuckle at all these nefarious powers ascribed to us. Getting obviously guilty people off because of technicalities. It really doesn't work that way.

If you have power to torture someone, like a cop or military officer, you can get that person to say whatever you want. It may not be true but it will be whatever they expect to hear.

"If you got a dead body and you think his brother did it, you're gonna find out you're right." - Usual Suspects

A lot of the misunderstanding comes from the need to attribute super-human powers to these 'terrorists' - they can withstand the harshest torture, if we keep them in federal prisons millions more will instantly appear to free them. When the reality is much more banal.

[Eric Martin]

Tom,

Korematsu is a stain on the SCOTUS, and it has acknowledged as much. Further, rulings since then have clarified the status of terrorists. Rulings as recently as 2008, and the military tribunals don't cut it. They are neither spies, nor POWs.

And I never said the choice was between miranda and torture, but your straw flame is right as far as it goes.

[Eric Martin]

Building on what fledermaus said, Tom, there is actually a track record to look at. This isn't purely conjecture. The track record is: yes, they talk when in civilian custody. And when tortured, they provide unreliable information. And when placed in military commissions, they tend to get light sentences or released altogether.

[russell]

Not every event is a pawn to use in the service of a political agenda.

While literally true, and with all due respect, in context this is kind of a risible comment.

The claim has been made, repeatedly, including by folks on this thread, that handling Abdulmutallab within the criminal justice system would result in him not giving up intelligence that he otherwise would have given us.

Well, as it turns out, that doesn't appear to be so. In fact, it may have helped make it possible to enlist his family in the effort, to good effect.

Can anyone provide an example to the contrary? We have, at this point, handled dozens or hundreds of terrorists using the criminal justice system. Surely there must be an example of one who has successfully exploited that status to deny us information.

Anyone? Ball's in your court.

[elm]

Tom: Your link on the 8 German spies is great. It's really amazing how the Army arrested, investigated, and interrogated them.

On a second look, it seems that civilian law-enforcement actually arrested, investigated, and interrogated them.

Remind me again of the size of Al-Qaeda's army, navy, and air force. Since you're drawing comparisons with the Nazi war machine, I assume that's a reasonable question to ask. German U-Boats sank over 4 million tons of shipping during WWII, how does Al-Qaeda's capability compare?

[Marty]

"Anyone? Ball's in your court."

Funny how we don't normally announce the progress of active investigations, yet, in this case, we announced getting actionable intelligence, announced when we got it, announced that we then flew to Yemen with it to debrief government there.

Certainly there would be no ulterior motive to all of this highly unusual openness in an ongoing investigation?

[Jacob Davies]

That's pretty funny after 8 years of politically-motivated (and not always very accurate) leaks under the Bush administration.

For what it's worth I think most of the secrecy is usually worthless, and that was the case under the Bush admin too. Secrecy's main function is to allow the concealment of failure and prevent accountability. (Obviously this is not true of the specific details - names, places, plans - but the mere fact that a captured terrorist is cooperating is not sensitive, since that will be the operating assumption of those he had contact with anyway once they learn that he was captured.)

[Marty]

"That's pretty funny after 8 years of politically-motivated (and not always very accurate) leaks under the Bush administration."

You really can't have it both ways. They weren't bad then but ok now.

Besides, these weren't "leaks" after the fact, they were announcements of what I believe would normally be things you wouldn't want the "other" guys to know you just found out. So it isn't even a valid comparison.

[wallamaarif]

"Certainly there would be no ulterior motive to all of this highly unusual openness in an ongoing investigation?"

That was my thought. The fact that we found out about this at all tells me Obama's signaling a change from this point forward.

Will it work? Well, I was a military interrogator in OIF, then an instructor at the Intel School. In my experience, the nice approaches always yield better intel. I know for a fact that good treatment yielded actionable intelligence from at least a dozen of the prisoners I interrogated. I know this because they told me so and their info checked out.

I only wish I could have brought in family members for the prisoners I interrogated. Setting up an extra family visitation was always a good rapport-builder; bringing them in to get the prisoner to change his ways would have been an even better tool.

[Carleton Wu]

Building on what fledermaus said, Tom, there is actually a track record to look at. This isn't purely conjecture. The track record is: yes, they talk when in civilian custody. And when tortured, they provide unreliable information. And when placed in military commissions, they tend to get light sentences or released altogether.

In fairness, I think the reasoning is backwards- Bush used tribunals for cases that he couldn't get convictions on in civilian court. So it's not that military justice is ineffective, it's just that it's no more effective than civilian justice.
Likewise, as russell points out, there doesn't appear to be evidence that military interrogation (or torture) is more effective at intel gathering than ordinary interrogation.

[Carleton Wu]

Marty,
I have no idea why you quote russell's challenge to produce evidence that the civilian system doesn't work for prosecuting terrorism, and you respond with a total non sequitur. It's as if you think there are no actual policies to debate, it's just a question of trying to score points against the other guys.

[rea]

Certainly there would be no ulterior motive to all of this highly unusual openness in an ongoing investigation?

The difference is, "Poor deluded fool is treated decently by Americans, cooperates" is propaganda aimed at the pool of potential al Qaeda recruits; while "macho administration tortures evil terrorists into submission" is propaganda aimed at the pool of potential Democrat recruits.

[Marty]

Cw, scoring points is actually what my reaction was to his statement. There is typically little info released on these types of national security investigations so all the info, both sides, is politically slanted and limited in value.

[Ugh]

OT (though somewhat related) - I'm really glad that Dennis Blair says that the US is "very careful[]" before deciding that they can assassinate US citizens abroad.

In fact they're "not careless about endangering American lives" and also get "specific permission". Part of the criteria is whether "that American is a threat to other Americans." Which, of course, is a very specific criteria.

So there you have it. Specifically assassinating american citizens abroad is now official US policy (yes this has probably been in place since at least 2002 when the Bush administration assassinated a US citizen in Yemen, then tried to claim he was "in the wrong place at the wrong time", even though they knew he was there).

Hill. City. Shining.

[Eric Martin]

Certainly there would be no ulterior motive to all of this highly unusual openness in an ongoing investigation?

Right, as if the GOP wasn't politicizing this case to the high heavens and back. So, yeah, I'm sure the Obama team would like to pushback a little. But here's the thing: if the GOP wasn't savaging his administration non-stop since X-mas itself, he probably wouldn't have felt compelled to air these developments. It works better when you have a responsible oppostion.

[russell]

On a second look, it seems that civilian law-enforcement actually arrested, investigated, and interrogated them.

Actually, they were captured because one of them contacted the FBI more or less immediately upon arrival and turned the rest of them in.

And that, in turn, is why they were tried by a military tribunal. FDR and Hoover wanted to preserve the illusion that they had been captured through crack intelligence and police work. FDR and Hoover were concerned that the actual circumstances of their arrest would come out in a public trial.

The assumption at the time of their capture was that they would be tried in a criminal venue, and the move to a military tribunal was in fact controversial. So controversial that a SCOTUS decision was required to establish its legitimacy.

And, as noted upthread, the saboteurs were agents of a nation with which were involved in a declared war.

"War" is not synonymous with "hostile acts of violence". It has a particular meaning, with particular consequences under law.

There is no sense other than in the realm of colorful language in which the United States can be considered to be "at war" with Al Qaeda.

Funny how we don't normally announce the progress of active investigations, ...

An interesting observation, but an utter non-response to my question.

I'm looking for a counter-example to Abdulmutallab. One terrorist or alleged terrorist who has used the protections of Miranda to deny us information.

I'll bet that such a person does, in fact, exist. What I find unlikely is that it's the norm, or that prisoners held under criminal sanctions as a group are any more or less likely to provide intelligence than prisoners held as unlawful combatants.

Maybe it's my wild romantic imagination, but I do think this used to be a nation with a respect for the rule of law.

19 guys hijacked four planes and flew them into three buildings. Almost 3,000 people were killed. That's really, really horrible.

In response, we decided to piss away the fundamental principles that we claim this nation is based on.

In my opinion, the US has become a nation of pampered, lazy crybabies. It's a good thing our greatest opponent is a couple thousand fanatics with AK47's and fertilizer bombs. If we had to face anyone with real resources to bring to bear, we'd sh*t our pants, cry for our mommas, and run the white flag up the nearest pole.

Abdulmutallab was a messed up kid who got recruited by the rough equivalent of the Baader Meinhof gang to stuff some explosives in his underwear and blow up a plane. That's weird, and scary, and disturbing.

It ain't a war.

Thanks

[Carleton Wu]

Cw, scoring points is actually what my reaction was to his statement. There is typically little info released on these types of national security investigations so all the info, both sides, is politically slanted and limited in value.

And yet, if we look at the info that's been released in toto, we get a pretty good idea of what's going on. For example, despite the Bush administration's attempts, it's pretty clear that torture led to little or no useful information.

But you've decided to have an entirely different discussion- it's all unreliable info. Like those people who'll praise politicians they like but criticize the ones they don't like for stuff that *every* politician does (eg bringing funding to their home state) rather than for what they actually don't like.

[elm]

Marty: The big difference in this case is that the facts of the case will all come to light, relatively soon, and an independent (non-government) witness exists (the defense attorney).

The Bush Administration pushed out a whole lot of misinformation about how well their "enhanced interrogation" (torture) worked and about how they had secret totally-awesome information that justified everything they had done.

Now that they are gone, the stories are in the process of unraveling. More-complete accounts of the torture of KSM and Zubaydah have shown the worthlessness of torture. Trials in Canada and the U.K. have revealed the ugly truth of "extraordinary rendition" (kidnapping + torture). Note that the U.S. government — including the Obama Administration — fought the release of evidence in these cases, in an apparent attempt to conceal torture.

The Bush Administration's propaganda was of the sort that was inherently difficult to uncover. Any attempt to verify or discredit it was met with claims of executive privilege and walls of secrecy.

By contrast, the Abdulmutallab trial will be conducted in civilian court with either all or almost-all evidence available to the public. His attorney can provide independent confirmation or rebuttal of government claims.

If Abdulmutallab has not, in fact, cooperated, we will certainly learn that during the trial. If the government has tortured him, we will learn of that too.

[hairshirthedonist]

In response, we decided to piss away the fundamental principles that we claim this nation is based on.

The Bush admin was the best thing that ever happened for OBL and vice versa. They did exactly what he wanted them to do, and he gave them the excuse to do exactly what they wanted. A match made in Hell. Just my opinion.

[Carleton Wu]

It's a good thing our greatest opponent is a couple thousand fanatics with AK47's and fertilizer bombs.

You mean the militia movement? :) iirc a GOP Senate candidate in Indiana said recently that if 2010 doesn't go their way, it'll be time to take out the guns. Now, Im not in favor of locking his traitorous butt up without a lawyer, but using the rationale of Justice Thomas et al, it seems like a logical result.

The Bush admin was the best thing that ever happened for OBL and vice versa.

I think history teaches us that the worst enemy of the radical is the moderate on his side, followed by the moderate on the other side. The radicals on the other side are depicted as the enemy, but the reality is that radical elements on both sides are required to prolong the conflict (which both sets of radicals desire in the hopes that, in the future, their side will gain the upper hand).
Thus we get the televised sight of Dick Cheney virtually salivating at the prospect of a successful AQ attack on the US.

[Carleton Wu]

Ugh,
OT (though somewhat related) - I'm really glad that Dennis Blair says that the US is "very careful[]" before deciding that they can assassinate US citizens abroad.

Where do you think the limits are for the US engaging in members of AQ? Im tentatively of the opinion that we oughtnt have a double standard for either action or legal activity (ie if we can assassinate noncitizen AQ members, we ought to be able to do the same to citizens)- but you don't have to agree with that, Im just curious. Eric, I wouldn't mind hearing your opinion on that as well.
Right now, as far as engagement goes, it seems that the Obama administration is holding the position that the Bush administration had the authority but used it badly, as opposed to saying that eg the US doesnt have the right to assassinate AQ members. And Im not entirely comfortable with that, but dont see a lot of room for alternatives. eg secret, in absentia death penalty trials for AQ members? That almost sounds scarier.

[russell]

You mean the militia movement?

No, they go in for AR-15's.

[Eric Martin]

C-Dub: I put up a post from Greenwald on the topic. Let's move the discussion there.

But you raise an interesting conundrum: assassination for thee and not me?