As soon as the Obama administration announced that it had Umar Farouq Abdulmutallab in custody and was questioning him about his failed Christmas Day bombing, conservatives began complaining about the fact that authorities had read him his Miranda rights. Rep. Aaron Schock (R-IL), for example, inaccurately complained that as soon as Abdulmutallab “was read his Miranda he did in fact stop cooperating with our intelligence.” In reality, officials did not mirandize Abdulmutallab until after he had already made clear that he wasn’t going to talk. Even afterward, Abdulmutallab gave authorities valuable information after the FBI gained the valuable assistance of his family members, who persuaded him to cooperate.
Nevertheless, Republicans are rushing out their same playbook in the case of Times Square bombing plot suspect Faisal Shahzad:
— “I think obviously that [mirandizing Shahzad] would be a serious mistake until we’ve — at least until we find out as much information as we have, and there are ways — legal ways — of delaying that.” — Sen. John McCain (R-AZ)
— “I hope that [Attorney General Eric] Holder did discuss this with the intelligence community. If they believe they got enough from him, how much more should they get? Did they Mirandize him? I know he’s an American citizen but still.” — Rep. Peter King (R-NY)
This morning on Fox News, Sen. Joe Lieberman (I-CT) suggested that Congress should perhaps create a process to strip “American citizens who choose to become affiliated with foreign terrorists” of their citizenship and, therefore, their Miranda rights. It’s unclear how this would be accomplished, however, since such a process would also presumably involve some sort of due process:
Some of us have started to talk about it here, which is that there is an existing law — which hasn’t been much used — that says if an American citizen is shown to be fighting in a military force that is an enemy of the United States, then that person loses their citizenship and they no longer have the rights of citizenship. That’s an old law that was adopted during a very different time of conflict.
I think it’s time for us to look at whether we want to amend that law to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.
Shahzad is a naturalized U.S. citizen from Pakistan. In February, former House Speaker Newt Gingrich justified the Bush administration’s mirandizing of terrorist suspects by saying that they were citizens. (Gingrich has thus far been silent on Shahzad.)
The Justice Department has not yet said whether it has mirandized Shahzad. But whether or not it does, Shahzad has the right to remain silent and the right to an attorney under U.S. law, regardless of whether officials read him those rights. As Matt Yglesias notes, mirandizing someone just means that what someone says will be admissible in court:
Now McCain thinks he may be eligible for the death penalty, which I think may be correct. But to give him the death penalty, or indeed any penalty, you need to put him on trial. Which is to say you need to prove that the guy in custody is actually responsible for the crime. And the whole reason cops mirandize suspects is that if you don’t, you risk having your evidence thrown out of court. If you gather all the information before mirandizing, you could be throwing the whole thing into doubt. Which is why professionals give out the warning.
Believe it or not, Fox News analyst Judge Andrew Napolitano and host Glenn Beck are condemning the type of fearmongering that King and McCain are doing. This morning on Fox and Friends, Napolitano said that Shahzad needed to be mirandized, and Beck added, “He’s a citizen of the United States, so I say we uphold the laws and the Constitution on citizens.” When Fox and Friends host Brian Kilmeade interjected, “But he’s a threat to the country. That’s different,” Beck responded, “So are a lot of citizens of the country. … We don’t shred the Constitution when it’s popular.”
Gen. Paul Eaton, who trained Iraqi troops during the Bush years, replied, “I don’t understand how a Senator or a Congressman can challenge the Mirandizing procedure. The laws are clear. Rep. King and Senator McCain have advocated a position that could cost us this case.”
,Adam Serwer at TAPPED points out, “Not mirandizing him could jeopardize the case, but it won’t “ensure” that he won’t be convicted.”