An article in the New York Times yesterday gave me considerable pause. The sort of pause that makes you blink, choke on your coffee, and cough miserably before re-reading the paragraph. Evidently, the United States government has captured another alleged Al-Qaeda conspirator to the 1998 Kenyan Embassy bombings. Captured and warehoused in a naval brig floating along the Mediterranean Sea without an attorney, Abu Anas al-Libi is described by the Times as “an intelligence goldmine.”
Abu Anas is charged by way of federal indictment alleging conspiracy with Osama Bin Laden to attack American interests in Saudi Arabia, Yemen, and Somalia as well as the 1998 Kenya bombings. These facts are important. Abu Anas is not, it would appear, a prisoner of war, but rather an accused person awaiting trial. This custodial status implicates two important and dove-tailing constitutional principles. In one sense, Abu Anas’ position as a suspect in a criminal investigation implicates his Fifth Amendment right to counsel and privilege against self-incrimination. Pursuant to Miranda, Mr. al-Libi should at least be aware of this fact. In the other, Mr. al-Libi is already charged with a criminal offense, which means that critical stages of the proceedings against him should already be underway – but they are not.
This basic calculus assumes, which is particularly dangerous in this day and age, that al-Libi is held criminally and not as an enemy combatant under the authorization for the use of force set out in 2001. If he is detained under the latter category, there is still some ground for concern. Article 22 of the Third Geneva Convention excludes sea imprisonment for any period of time. I find it highly dubious, however, that the government can in good faith detain a man as an enemy combatant when he awaits trial on a federal indictment for crimes committed against the United States before the authorization for the use of force took effect.
Keeping this distinction in mind, I will focus this post principally upon the criminal justice issues this case presents. In particular, I am deeply troubled by the extensive use of the “public safety” exception to the Miranda requirement that is now in vogue amongst federal law enforcement (You may remember the use of this term recently during the Boston Marathon bombing investigation).
The methodology that will be used to extract intelligence data has already been “tested” on another government detainee – Ahmed Abdulkadir Warsame. In that investigation, the F.B.I. interrogation experts subjected the suspect to months of boat-confined interrogation before sending in a “clean” team of F.B.I. investigators, who were not privy to the prior team’s interrogation, to mirandize the defendant and extract a court-admissible confession. This method seeks to stretch the public safety exception well beyond its breaking point and then sweep away the taint of illegality by bringing a new set of eyes onto the investigation. This author’s reading of precedent finds this approach to be wanting.
Before we delve further, let us examine the public safety exception to the Miranda requirement. The seminal case on the issue – New York v. Quarles -involved a known informant alerting the police that a particular suspect raped her. She further notified law enforcement that the suspect carried a gun and that he had just entered a supermarket with his firearm. When the police confronted the suspect, they drew their weapons and asked him were they could find the gun. New York v. Quarles, 467 U.S. 649 (1984). Thus, in a moment of spontaneity, where the “kaleidoscopic” nature of events necessitates action for the protection of the public, the requirements of Miranda do not apply.
The Quarles opinion was not without its dissenters. Justices Marshall, Brennan, and Stevens all expressed the opinion that such an exception might swallow the rule, and in so doing encourage the exact type of police practice Miranda sought to abolish:
It would strain credulity to contend that Officer Kraft’s questioning of respondent Quarles was not coercive. In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: “Where is the gun?” . . . Officer Kraft’s abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. . . .
Id. at 684 – 85 (Marshall, J. dissenting). What further strains credulity is that an exception drawn to confront the imminent threat of a firearm in a supermarket immediately possessed by a suspected rapist could be extrapolated to justify the many-months-long detention of a man without counsel for crimes he allegedly committed in 1998. Unless the government can establish that al-Libi knows the passcode to a ticking time bomb threatening American lives, it seems highly doubtful that anyone but the presidential sycophants in the Justice Department believe that such interrogation practices passes constitutional muster.
In fact, it would appear that even the aforementioned sycophants are worried. Hence the F.B.I. “cleanup crew” mentioned earlier. Although the Supreme Court has infamously permitted the use of interrogation in the non-custodial context when the suspect is free to leave or is not being directly questioned, it has carefully never permitted the use of “wave” interrogation methods where the detained suspect is first questioned sans-Miranda and is then later mirandized to cure the illegality of the initial question time. Oregon v. Mathiason, 429 U.S. 492, 499 fn. 5 (Marshall, J. dissenting) (“I trust today’s decision does not suggest that police officers can circumvent Miranda by deliberately postponing the official “arrest” and the giving of Miranda warnings until the necessary incriminating statements have been obtained.”). Such a practice is inherently suspect. People do not, as a general rule, understand the difference between a custodial interrogation and any other type of police questioning. If a suspect “spills the beans” to the cop without being informed of his Miranda rights, does he truly understand that he has no obligation to tell the second questioning cop anything? Now, lets extrapolate this reasoning to a Navy brig, after many months of questioning. Do I even need to elaborate on the coercive nature of such an environment?
Finally, there is the “critical stages of the proceedings” question I presented earlier. Mr. al-Libi is not a generic, perpetrator’s-identity-unknown suspect leaning against the street corner. He is already facing an indictment. This means that, if he were a U.S. citizen charged with Murder, Possession of a Controlled Substance, or Reckless Driving, he would be entitled to magistration and bond (or at least a determination of bond eligibility because we are in Federal Court where there “are no [favorable] rules [governing bond] and the points don’t matter”). The high Court has ruled time and again that these pre-trial proceedings trigger the Sixth Amendment right to counsel, and not merely the more prophylactic right to counsel secured by Miranda’s interpretation of the Fifth Amendment.
Ultimately, the President cannot avoid the age old “have your cake and eat it too” quandary. If the government truly needs Mr. al-Libi’s mind for military intelligence reasons, they must accept that such a price will cost them a criminal prosecution. The U.S. Attorney’s Office is not unfamiliar with this problem – transactional immunity is commonly available when the government is put to the choice of subpoenaing one grand jury target to bolster the prosecution of another. This scenario does not readily present any meaningful differences. The Government defends its position on the basis that the Guantanamo era needs to come to an end. No one agrees with that generality more than me. Nevertheless, rather than play a game of chess with the finer points of constitutional law and criminal procedure, the Government should be asking broader questions: Do we have the right to detain people indefinitely? Are we willing to sacrifice our own values for the sake of military security? Are we the just arbiters of “terrorist” criminal conduct in the first instance?