By Mark Esposito, Weekend Guy
Ahmed Abu Khatallah’s boat docked yesterday and the reputed Benghazi attacks mastermind was met with a contingent of U.S. Marshals, Navy security and a phalanx of Justice Department types all eager to hear his gilded version of events and to usher him to a US federal courtroom near the White House where the processes of the US justice system could start slowly grinding now in earnest. He pled not guilty for anyone interested. Before his arrival, however, a cacophony of Republican lawmakers decided to weigh in on his treatment aboard the trans-Atlantic cruise ship, the USS New York, provided by the Navy.
As many know, Abu Khatallah was captured in a clandestine operation conducted by US special ops aided by shadowy figures from both inside and out of the Libyan power structure who lured him to a villa where US forces made the arrest. Abu Khattallah, designated by the State Department as a global terrorist, was regarded as a prime suspect due to his affiliation with a group he helped to found and known as the Ansar al-Sharia. A fundamentalist militia group that rose to power after the fall of Gaddafi, it has claimed responsibility for the attack against the U.S. Embassy and American school in Tunis, leading the Tunisian government to declare it a terrorist organization. The group has been implicated in attacks against Tunisian security forces, assassinations of Tunisian political figures, and attempted suicide bombings of locations that tourists frequent. Not exactly the kind of guys you bring home to dinner.
Abu Khatallah’s capture was coup for an administration looking to change the dialog on the Benghazi attack which left four Americans dead including US ambassador J. Christopher Stevens. Criticized for everything from the response (or lack thereof) to the attack by US security forces as well as even the characterization of the attack itself, the administration has been attempting to change the narrative since 2012. In his new book, Blood Feud, excerpted by the New York Post, author Edward Klein claims President Obama pressured then Sect’y of State Hillary Clinton to issue a release stating the attack was a spontaneous uprising relating to an obscure internet video criticizing Islam. Knowing the attack coincided with the anniversary of the 2001 attacks on US soil, Clinton bristled. According to Klein, Clinton said, “Mr. President, that story isn’t credible. Among other things, it ignores the fact that the attack occurred on 9/11.” But the president was adamant. He said, ‘Hillary, I need you to put out a State Department release as soon as possible.”
Against this political backdrop, Abu Khatallah’s handling had high stakes politically as well as serious system of justice ramifications. His questioning began without benefit of his Miranda rights and like so many alleged terrorists, Abu Khatallah couldn’t stop talking. He kept talking, denying his role, but doing the “tell-all” about everyone else he knew even after his was read Miranda warnings. Miranda, as most folks know, harkens the landmark Supreme Court case declaring criminal suspects must be advised of their constitutional rights to counsel and against self-incrimination before questioning. The ruling led to the exclusionary rule which bars evidence obtained in violation of this notice. Though steadily chipped away at by conservative courts since the opinion was written it’s been more or less the law of the land since it bubbled up from Arizona in 1966.
Though a darling of civil libertarians since its uttering it’s been just as much a step-child to Republicans. Nixon and Reagan both ran against the idea of so-called Miranda rights and countless other Republicans saw it as a boon for the guilty based on a “technicality” summarized ever so succinctly by Boston Police Commissioner Edmund “Big Ed” McNamara who noted his frustration saying, “Criminal trials no longer will be a search for the truth, but a search for technical error.” The furor died down but the sentiment in Republican circles to eliminate Miranda continued. Republican dominated courts joined in confirming numerous exceptions including the public safety exception which allowed the dispensing of Miranda warnings by the police interrogators if ” necessary to secure their own safety or the safety of the public.” That case involved a gun hidden in a supermarket by a robbery suspect that could have been found by children. But like so many cases where the facts seem to justify the principle espoused, other facts don’t fit so easy with our sense of justice and fair play.
Fast forward now to modern-day and the so-called War on Terror. Republicans seized on Miranda again shortly after the 9/11 jet attacks to insist on a weakened protections for terror suspects. A national debate ensued over enemy combatants versus criminal suspects. What were terrorists? International criminals bent on havoc or a non-uniformed army who declared war on the US and its allies ? President George Bush chose the latter and the war on terrorists and Miranda was back front and center. Republicans have consistently decried Miranda protections even on those occasions when suspects were processed in American courts rather than the military tribunal system handled by the US armed forces for enemy combatants in the holding center at Guantanamo Bay. There in a not-so-distant US military base, Miranda rights are just a pipe dream.
Since 2001, Republicans have mounted a constant drumbeat against Miranda protections for terror suspects. In 2010, Republicans from every quarter decried the use of Miranda in the interrogation of Umar Farouk Abdulmutallab, the Nigerian man behind the failed Christmas Day airline bombing plot. The Huffington Post reports that Sen. John Cornyn (R-Tex.) said of the news that Shahzad was cooperating even after getting his Miranda rights read to him: “That is a stroke of good luck. What if he had not waived them and just quit talking, said ‘I want my lawyer’?”
“Maybe we got lucky and [Shahzad] said I will go ahead and talk to you anyway,” said another Senate Republican, Jon Kyl (R-Ariz.), after learning the same. “But you didn’t know that when you read [him] the rights. So I stand by what I said — it is better in these kinds of cases to get the intelligence first and then, if you decide you want to proceed with an Article 3 prosecution, then read the Miranda rights.”
Senate Minority Leader Mitch McConnell (Ky.) went further writing in a letter to Holder that, “We remain deeply troubled that this paramount requirement of national security was ignored — or worse yet, not recognized — due to the administration’s preoccupation with reading the Christmas Day bomber his Miranda rights.” Preoccupation with constitutional rights a bad thing? For Senate Republicans it surely was.
In March 2011, Rep. Lamar Smith, R-Texas, filed the Ensuring the Collection of Critical Intelligence Act of 2011, which required the Justice Department to consult with the director of National Intelligence and the Secretary of Defense before giving terrorists Miranda rights. That bill died in committee, but nearly identical language was included in the 2012 defense authorization bill which said in part, that before seeking an indictment or otherwise charging an individual in a federal court, the Attorney General shall consult with the director of National Intelligence and the Secretary of Defense about “whether the more appropriate forum for prosecution would be a federal court or a military commission; and whether the individual should be held in civilian custody or military custody pending prosecution.” This was an end run around Miranda by diverting a suspect to the nearly Miranda-free zone of the military commissions. It also made the charging decision a political one rather than one based on the nature of the acts of the suspect.
In 2013, in the aftermath of the Boston Marathon bombings, House Intelligence Committee Chairman Rep. Mike Rogers (R-Mich.) demanded answers from Attorney General Eric Holder on why the DOJ allowed a magistrate judge to inform terror suspect Dzhokhar Tsarnaev of his Miranda rights while the FBI was in the midst of interrogating him earlier this week. Sounding apoplectic, ex-FBI agent Rogers said, “We can’t have, in a case like this, the judiciary deciding, because it’s on TV and it might look bad for them … that they were going to somehow intercede in this. It’s confusing, it is horrible, [a] God-awful policy, and dangerous to the greater community,” he said. “And we have got to get to the bottom of this, and we’ve got to fix it right now.” Ok, then. How about an aspirin or a quaalude there Mister Agent Rogers? By the way, Tsarnaev talked, too.
Now in 2014, Republicans are still complaining about reading Miranda rights to suspects who still decide to talk. “I have serious concerns that conducting a rushed interrogation onboard a ship and then turning Abu Khatallah over to our civilian courts risks losing critical intelligence that could lead us to other terrorists or prevent future attacks,” Sen. Kelly Ayotte, R-New Hampshire, said in a statement. Criminal defense lawyer … yep I said that right … South Carolina Sen. Lindsey Graham chimed in that, “If they bring him to the United States, they’re going to Mirandize this guy, and it would be a mistake for the ages to read this guy his Miranda rights.” Graham must be the most conflicted man in Washington DC and that takes some doing.
In its defense to following the constitution, the White House has pointed out that “they have successfully tried a number of terrorists domestically and that no new captives have gone to the Guantanamo Bay detention facility in years.” Not exactly a “Four score and twenty years ago” defense of the union or the constitution that makes it so, but it’s a start.
Abu Khatallah was appointed a public defender, Michele Peterson. He was ordered to remain in custody until hearings set for Wednesday and Friday. No comment yet from Republicans yet on that announcement or whether Gideon v. Wainwright is yet another liberal impediment to the War on Terror.
The American public’s reaction is mixed to Miranda protections for terror suspects with just about 51% in favor. What do you think?
Source: CNN
~Mark Esposito, Weekend Contributor
By the way and for better or worse, the views expressed in this posting are the author’s alone and not necessarily those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art is solely the author’s decision and responsibility. No infringement of intellectual property rights is intended and will be remedied upon notice from the owner. Fair use is however asserted for such inclusions of quotes, excerpts, photos, art, and the like.
Paul:
“There is nothing that says that terrorists or POWs are due Miranda Rights.”
********************
For POWs nothing. For terrorists accused before American tribunals, just the Constitution.
mespo – if the terrorists are not captured on US soil, they have no rights. There are no Constitutional rights and I do not think there is any case law saying they have Constitutional rights.
Saucy, I did read about the many drone crashes. Those things cost hundreds of millions of dollars!
Mark, Here’s my take on the timing of this arrest. There is little doubt he could have been taken into custody @ any time. Obama and Holder are adamant about either writing tortured briefs to justify killing US citizens via drones, or trying foreign terrorists like they’re a car thief! The “logic” escapes me. The public does not support the latter. Unfortunately, they do support the former. I find the killing of US citizens via drones an abomination. So, w/ ALL of the scandals and incompetence swirling, Obama would have liked to put off taking this guy until after the midterms. It’s unpopular to try him. But, the political people told him you need to have some positive PR. We’ll spin it like this was an intelligence mastermind project. However, that did not happen. CNN did a very ridiculing story about how easy it was for anyone to find this guy, and played interviews they had w/ him in coffee shops! So, the gang who couldn’t shoot straight screwed another pooch on this one. Hardly anyone saw this capture as a “coup,” and now the DOJ has to handle the negative polls on Mirandizing him. Unforced errors. Pissing on their legs. Hillary is doing the same.
Nick wrote “He has no problem killing US CITIZENS via drones, but gives Miranda rights to underwear bombers and Ambassadors abroad”
I was just about to give up on Nick and he goes ahead and write this gem.
Absolutely. We cannot summarily kill people via drone because arresting them is inconvenient and then turn around and claim that a similar person will be tried in the courts because we were able to get our paws on him.
Speaking of drones, did you know that 1/2 of all Predators were lost in accidental crashes? That factoid gives me a warm feeling knowing that many parties, government and private, want to employ drones in the heartland.
http://www.washingtonpost.com/sf/investigative/2014/06/20/when-drones-fall-from-the-sky/
Gigi:
No problem with your opinion, but you’re factually wrong to suggest that constitutional rights are only for American citizens. The constitution doesn’t say that and no courts have interpreted them that way. The only rights based on citizenship are holding office and voting.
There is nothing that says that terrorists or POWs are due Miranda Rights.
Al:
Thanks for the “V for Vendetta” reference. For those not yet a fan of the movie, there’s this:
Esposito,
Your entire article, like most of your articles are left leaning. I’m against reading Khatalluh his rights, because #1, Miranda Rights are for AMERICAN CITIZENS–no one else. #2 He is not an American citizen, #3 He’s a known terrorist who has played a major role in the destruction and hate of our country and other regions of the world. #4 He has caused the death of thousands of people. #5 If we would have read Miranda rights during WWII, the Korean War, and Vietnam War, we would not have found out as much intelligence as we did, and very few of the guilty would have been prosecuted due to technicality errors.
Miranda Rights has a place in our country for our citizens, however, it often gets the guilty off the hook, because of technical errors. In some cases, it’s not always beneficial and puts our society in harms way.
There’s a reason this country is so divided on so many issues. This is yet another example of the reason. Writing a ‘hit piece’ against Republicans instead of discussing the pros and cons of the issue around Miranda rights for terrorists is a great example.
nick:
I thought I was pretty fair. Obama clearly wanted this arrest to move the dialog off his admin’s false statements about of Benghazi and the lack of security. I mentioned the split in the administration about this in citing the excerpt from Blood Feud. Also I call the Republicans out for their continued attack on anything approach fair play in dealing with criminal defendants. The title is a little skewed but that’s the point of the article. A lot of the neocons never saw anything in the Bill of Rights they like except the 2nd Amendment.
Guilty persons have no rights. They should be detained, interrogated in an enhanced manner, and then summarily executed. This should apply to US citizens and non-citizens alike. England prevails!
Boston Marathon guys yes, this guy no. Besides there is questioning and then there is questioning questioning. You do not have to read them their rights right after arresting them.
Finally, MANY people, like myself, feel strongly about Miranda. Just not in cases like this. I resent you making the argument as you did.
Ambassador “killers.”
It seems you guy Obama is conflicted. He has no problem killing US CITIZENS via drones, but gives Miranda rights to underwear bombers and Ambassadors abroad. Help me w/ that logic?
I do think the Boston Bomber should have been Mirandized.
Mespo, What has happened to you. His capture “Was a coup for the Administration.” WTF? He was interviewed by reporters in coffee shops in Benghazi after the attacks. He was seen by reporters in town.
I don’t think he should be afforded Miranda rights. I am not a GOPer. I believe too many people believe terrorists of his ilk should be afforded those rights. I think we should have an expedited military trial like FDR had for the Nazi saboteurs. I guess this makes me a knuckle dragger.
Mespo, you seem to be circling the wagons for Obama and Holder. Pity.
Not understanding the rationale for the Western attack on Libya, I don’t see how is it wrong for locals to attack the “embassy” and “security” forces of foreign invaders shortly after those invaders attacked that country killing large numbers of people, facilitated the assassination of the President, destroyed buildings, homes, and infrastructure, and took control of that country’s valuable resources. Which acts in this stream of events are justice and which are retribution?
Should we give Constitutional protection to those who are not only non-citizens but who are simultaneously accused of engaging (however maliciously) in any form of terrorism?
One could state that the right to due process et al. are essentially what make Americans American, thereby justifying exclusionary procedures (euphemistic advanced interrogation) for those outside citizenship — though if we as a country seek to spread our style of government across the world, particularly in regions dominated by religious barbarism and profound injustice, maybe it makes more sense to practice the democracy we wish to spread, extended to those very non-citizens.
It’s tough, but seems obvious.
Islamists have declared war (jihad) on the U.S. The fact that they do not wear uniforms is not relevant. We should treat them the same as we would any saboteur during wartime. In WWII we tried eight Nazi saboteurs before a military commission: one received 30 years, one received life imprisonment, and six received the death penalty. Miranda has no place here.
http://www.fbi.gov/about-us/history/famous-cases/nazi-saboteurs
“Hard cases make bad law.”