I have instructed my subordinates that suspected Al Qaeda terrorists captured anywhere in the world should be interrogated extensively -- with safeguards against abuse -- before any Miranda warnings or access to lawyers. This approach is legal and it may save lives. Although the specific evidence obtained might in some cases be inadmissible in court, the suspects will be prosecuted based on other evidence once interrogation is completed.
This is a major departure from the established policy of all past administrations, of the FBI, and until now of my administration. Nobody should fault those who diligently followed established policy in handling the suspect in the Christmas Day airplane bombing attempt. But I have decided that my new policy is more likely to obtain critical intelligence from captured terrorists.
President Obama should say something like this, something fairly dramatic, to counter the surging Republican campaign to brand him soft on terrorism.
He already faces a bipartisan push to block civilian trials of Khalid Shaikh Mohammed and other 9/11 conspirators and to kill his plan to close the Guantanamo Bay prison camp. Whether he wins or loses those battles, he risks permanent political damage unless he dispels the soft-on-terrorism charge.
The charge is unfair. But it is gaining traction because of two glaring mistakes.
One was the decision by Attorney General Eric Holder's Justice Department to advise Umar Farouk Abdulmutallab after only 50 minutes of interrogation that he had a right to stop talking -- which he did. This blunder was compounded by Homeland Security Secretary Janet Napolitano's fantasy that "the system worked," by Obama's fatuous assertion that Abdulmutallab was "an isolated extremist," and by Holder's unconvincing defense of the initial mistake in a five-page letter to Senate Republican Leader Mitch McConnell on February 3.
The other mistake was Holder's decision to put the 9/11 defendants on trial in Manhattan.
The administration will apparently reverse that decision. But it also needs to put an effective interrogation policy in place before the next would-be bomber is captured. Doing that would be an implicit admission that the administration bungled the Abdulmutallab interrogation. Better to make the admission explicit, and thereby to demonstrate a thus-far-invisible capacity to learn from mistakes.
The recent leaks that the suspect has started talking to interrogators again do not redeem the decision to Mirandize him. His more than a month of silence gave his co-conspirators plenty of time to cover their tracks and to advance a wave of attacks had that been their plan. The administration also claims that Abdulmutallab gave up important information the day he was captured. But that only underscores the foolishness of stopping the interrogation after 50 minutes.
"I have some experience with interrogation, and 50 minutes does not get you what you need," said Sen. John McCain, R-Ariz. He also understands a distinction that appears to escape Holder: Although torture is a moral horror, aggressive interrogation is a moral imperative when lives could be at stake.
This is not to endorse the demands that the president throw Holder over the side. After all, Mirandizing is the law-enforcement routine in this country, a routine that the Bush administration followed in similar cases. It took me a while to realize that Mirandizing was a big mistake in this case. So I empathize with those who made the mistake. I also defended Holder's plan to hold the 9/11 trial in Manhattan, which seems a very bad idea now that the initial enthusiasm of many New York politicians has morphed into nightmare visions.
And I would still defend his decision to maximize the trial's legitimacy by prosecuting Mohammed under civilian rather than military law. Too bad that Holder almost immediately made the trial sound like a charade by declaring that "failure is not an option." Then White House press secretary Robert Gibbs went him one better by asserting that Mohammed is "likely to be executed."
But champions of military commissions gloss over the fact that the panels have so far been something of an embarrassment, managing to convict only three men, two of whom have since been freed, in the eight years since Bush announced them.
Obama's critics are also wrong to imply that suspects can be subjected to prolonged interrogation without Miranda warnings only if they are detained by the military.
But if Obama wants to fend off the soft-on-terrorism label, he will have to think less like a law professor and more like a war leader.
In fairness, Obama has already shown toughness as a war leader -- and has enraged his friends on the left -- by adopting and sometimes improving upon key Bush policies. These include prolonged detention of some suspected terrorists without trial, using military commissions to prosecute others, "rendition" of still others to allied countries, targeted Predator drone killings of suspected Taliban fighters, wide-ranging wiretaps, the USA PATRIOT Act, and the military buildup in Afghanistan.
But as the Abdulmutallab case shows, the Obama administration has sometimes so fetishized the law enforcement approach to terrorism as to seem almost indifferent to the need to extract information from captured terrorists, whose crimes are acts of war.
Holder's Justice Department forfeited an opportunity to squeeze what might have been lifesaving information out of the would-be mass murderer without even bothering to notify top counterterrorism officials.
And they did this for no good reason. Neither the 1966 decision in Miranda v. Arizona nor the Fifth Amendment required telling Abdulmutallab that he had a right to remain silent or giving him prompt access to a lawyer.
No law clearly bars grilling a suspect for hours or days without Miranda warnings or lawyers. The only consequence of thus "violating" Miranda, or even of extracting information through mild coercion, is that the information obtained may be inadmissible at trial. Or it may be admissible: There is a recognized "public safety" exception to Miranda that might apply in cases such as Abdulmutallab's.
Fourth Amendment precedents do require civilian authorities to take arrested suspects before magistrates within two days. That rule, like Miranda, is enforceable only by excluding evidence gathered through improper procedures. But if civilian authorities are averse to un-Mirandized interrogation, or if two days is not enough, the military can do it.
The Obama administration should be forcefully explaining why Predator attacks are consistent with both international and domestic law.
Obama properly rejected the brutal Bush-era interrogation methods that so soiled America's image. But he overreacted when he barred the CIA from using any methods at all beyond the gentle persuasion allowed by the Army field manual for interrogating prisoners of war. The manual prohibits even "threats" -- such as "You're going to hang if you don't cooperate with us" -- that are both legal and routine in civilian law enforcement. That should be changed. (See this link for more.)
Even if the interrogation rules are not changed, the prolonged grilling that the manual allows is far likelier to save lives than is reflexive adherence to the Miranda routine. Although Obama should seek new legislation, as I've previously argued, current law provides adequate authority for prolonged interrogation. (See "Lessons of the Christmas Bombing Plot," NJ, 1/9/10, p. 10.)
But the president has been so eager to show the world and the American Left that he has ended the abuse of prisoners, the swaggering unilateralism, and other Bush excesses that he seems reluctant either to endorse aggressive interrogation or to mount a full-throated defense of the tough-on-terrorism policies that he has adopted. It has long been clear, for example, that Obama would continue to imprison somewhere -- if not at Guantanamo -- those of the 190 or so current detainees who cannot be proven guilty of crimes but are deemed too dangerous to release.
While quietly adopting in its legal briefs much of the Bush defense of these detentions, however, the Obama administration has never offered a compelling public defense of their legality.
Similarly, while greatly expanding the use of Predator drones to kill suspected Taliban leaders -- and often the women, children, and men surrounding them -- the administration has never explained publicly why this is a lawful form of national self-defense.
As my National Journal colleague Shane Harris detailed in his January 9 cover story, human-rights activists, U.N. officials, and others are beginning what promises to become a concerted international campaign over the coming decade or more to brand such drone attacks as war crimes -- at least when they are conducted far from Afghan battlefields and especially when they are ordered by a Republican president. (See "Are Drone Strikes Murder?" NJ, 1/9/10, p. 21.)
It may take years to materialize, but the coming clamor to prosecute U.S. officials for Predator "war crimes" may well echo the current clamor for "torture" prosecutions.
The Obama administration should be pushing back by forcefully explaining why the Predator attacks are consistent with both international and domestic law.
Such a statement would have special force if it came from Harold Koh, Obama's top State Department lawyer. A leading international law scholar and former Yale Law School dean, he has been close to the same left-leaning human-rights groups that are laying the groundwork to challenge Predator attacks.
Maybe a congressional committee could help things along by asking Koh, who suggested repeatedly that key Bush policies violated international law, to explain why Obama's policies do not.
This article appears in the February 6, 2010, edition of National Journal Magazine.