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Chasing Phantoms

U.S. Citizenship Isn’t the Issue in Terrorism Cases

SOURCE: AP/Pablo Martinez Monsivais

Senate Homeland Security and Governmental Affairs Committee Chairman Sen. Joseph Lieberman (I-CT) takes his seat Wednesday, May 5, 2010, before the start of the committee's hearing.

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Sen. Joe Lieberman (I-CT) wants to fix a problem that doesn’t exist with a solution that wouldn’t actually do what he intends. He is introducing legislation today that would strip U.S. citizenship from Americans who join designated terrorist organizations, ostensibly to eliminate supposed impediments to interrogation and ease the path to military detention and trial.

Unfortunately, citizenship status has no bearing on requirements to advise suspects of their rights under the Miranda rule, and in any event, such actions do not interfere with intelligence collection. Making it worse, when the Bush administration tried interrogation Sen. Lieberman’s way, it was a spectacular failure. The Obama administration should reject these gimmicky political stunts and keep the pressure on terrorist organizations using all the weapons in our arsenal, including the tough and proven criminal justice system, to identify and defeat terrorists.

Faisal Shahzad, the U.S. citizen suspected of the failed Times Square bombing, is reportedly cooperating with his FBI interrogators and providing useful intelligence information about the attempted attack and his potential connection with the Pakistani Taliban. According to the FBI, he was originally questioned under the public emergency exception to Miranda. He was then advised of his right to remain silent and to an attorney, but he waived those rights and continued his cooperation with interrogators from the High-Value Interrogation Unit.

While it is hard to understand why Sen. Lieberman and his conservative allies believe that obtaining useful intelligence information from a suspected terrorist in a lawful interrogation threatens the safety and security of the American people. Sen. John McCain (R-AZ) said advising Shahzad of his Miranda rights was “a serious mistake.” Sen. Lindsey Graham (R-SC) said “Miranda warnings are counterproductive.” Rep. Peter King (R-NY) said “I know he’s an American citizen, but still.”

Picking up on Rep. King’s concerns, Sen. Lieberman hit on what has been described as a “work around” on Miranda—extend to include designated foreign terrorist organizations to the current law that allows for the removal of citizenship from Americans who voluntarily join foreign military forces to fight the United States or its allies.

This may have surface political appeal for those looking for the illusion of acting against terrorists, but the major flaw in this approach is that citizenship status has no bearing on the requirement to “Mirandize” a suspect. Conservatives may not like it, but the U.S. Constitution is the law of the land and applies to citizens and noncitizens alike when they are in the United States. Complicating matters further for conservatives, any process for removal of citizenship would likely require significant due process, necessitating access to counsel, thus negating the entire purpose of this exercise.

Equally important from a national security standpoint, the record of interrogations of suspected terrorists after being advised of their Miranda rights makes this entire effort irrelevant. Shahzad is cooperating. Christmas bomber Umar Farook Abdulmutallab is cooperating. Najibullah Zazi, who was arrested in 2009 as he was preparing suicide attacks on the New York City subway, is cooperating. David Headley, complicit in the 2008 Mumbai attacks, is cooperating. All were advised of their Miranda rights and all have provided useful, actionable, and reliable intelligence information to their interrogators. Miranda is simply not an impediment to intelligence collection.

In contrast, the Bush administration experimented with military detention of suspected terrorists captured in the United States, holding Jose Padilla and Ali al-Mari in military custody for months and years without access to attorneys or the outside world. The only problem was that neither Padilla nor al-Mari provided much information to their interrogators.

In Padilla’s case, after seven months without any luck, then-Defense Intelligence Agency Director Adm. Lowell Jacoby pleaded with a judge to prevent Padilla from meeting with an attorney in the hope that more isolation would finally produce a breakthrough. Judge Michael Mukasey—the same Mukasey who would later become attorney general—rejected Jacoby’s plea and forced the government to let Padilla meet with an attorney, arguing that it would not interfere with his interrogation. Mukasey has been proven correct. By trumpeting the nonexistent problem of Miranda, Sen. Lieberman and his allies want to distract from this dismal record of their preferred alternative: military detention and interrogation.

Sen. Lieberman wants to allow for military commissions trials for suspected terrorists who are American citizens like Shahzad, but the senator from Connecticut has only himself to blame for the existing prohibition on military commission trials for Americans as he has twice voted for the Military Commissions Act that grants jurisdiction only over “alien unprivileged enemy belligerents.” If he wanted military commission trials for all terrorism suspects regardless of citizenship status, he could have simply introduced legislation to amend jurisdiction.

Recognizing when an American has joined a foreign military force is usually pretty easy as they wear uniforms, serve in organized units, and fight in open armed conflicts. Identifying when an American has conclusively joined a foreign terrorist organization to fight the United States is obviously far less straightforward. Making that determination, as Sen. Lieberman wants to do, at the outset of an investigation expressly for the purposes of deny basic rights during interrogation or at a subsequent trial is misguided, unnecessary, and impractical.

Conservative responses to the threat of terrorism seem to grow more bizarre by the day. At the same time Sens. Lieberman, McCain, and Graham are pushing to deny suspected terrorists their right to an attorney or to remain silent, they refuse to revoke suspected terrorists’ right to buy guns. It is extremely odd that they are more afraid of suspected terrorists in jail with a lawyer than they are of them on the loose and armed with a 9 mm Glock.

Ken Gude is the Associate Director of the International Rights and Responsibility Program at American Progress.

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