23 May 2010

"Intelligence" Interrogations and Miranda Rights

There's an interesting proposal from a professor at Duke University on how to modify interrogations to meet both national security needs and balance with American civil rights. There's much more detail at the link, but here's an excerpt. It's a pretty decent argument, even if not realistic in the current political climate.

To meet our counterterrorism objectives, Congress should enact a law that allows the government to interrogate a suspect for intelligence purposes, without counsel present, for up to seven days. To protect the suspect's constitutional rights, the information gained during this time could not be used as evidence against him in a criminal trial.

Once the interrogation is complete, the suspect would be turned over to the criminal justice system for a normal prosecution, with all the usual civil liberties protections. Such a system would maximize the chances of gaining valuable intelligence while leaving our criminal justice system undisturbed.

While civil libertarians will decry this proposal as a form of administrative detention, it's far more protective of civil liberties than the system devised during the Bush administration (and affirmed by the Supreme Court). Under this military system, suspected terrorists (including U.S. citizens) can be designated enemy combatants by the president, placed in military custody and held indefinitely without trial. Judicial review of the lawfulness of the detention does not take place for months, even years.

High-ranking Bush lawyer Jack Goldsmith, upon seeing a 22-year-old U.S. citizen, Yasser Hamdi, isolated in a naval brig after being designated an enemy combatant, said, "Something seemed wrong. ... This is what habeas corpus is for."

But, as critics have pointed out, the criminal justice procedures used following the failed bombing of Flight 253 to Detroit and the botched car-bomb attack in Times Square could squander opportunities to gain intelligence. Normally, when a suspect is arrested, he is read Miranda rights and given the opportunity to see a lawyer. In most cases, suspects are advised to stop providing information, at least until the lawyer can evaluate the case. Even if a suspect waives his Miranda rights and submits to an interrogation, he must be "presented" in court "without unreasonable delay." These procedures create obstacles to collecting intelligence in national security cases.

By: Brant

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