Michael Isikoff On Whether The Mirandizing Of The Times Square Terrorist Is A Good Idea
HH: Joined now by Michael Isikoff of Newsweek Magazine. Michael, always a pleasure, thanks for joining me.
MI: Always good to be with you.
HH: What do you think, what are you learning about the Times Square terrorist today?
MI: Well, we learned a bit, a bit more. First of all, you know, it was pretty good police detective and intel work. You know, they put together the VIN number, got him to Craig’s List. They were able to get, track down the guy, and got him just, you know, he had already boarded the plane, so it was a little bit of a real Hollywood-like chase there, but they did get the guy. He was not read his Miranda rights, you’ll be happy to know. They used the public safety exception. And they say he has been talking, has acknowledged that he received bomb training in Northwest Pakistan. Now the one wrinkle on that is he’s also saying on this plot, he acted alone, that he did not have a co-conspirator in the plot who was helping him launch this particular attack. There’s some skepticism about that among U.S. intelligence officials. We just put something up on our Declassified blog that lays that out for your listeners who might be interested. So we don’t know that we have the full story yet, but they do seem to have, you know, the man they were looking for, and that’s a good thing.
HH: Now Michael Isikoff, has he been Mirandized? Do you know?
MI: What they told us today is he was not initially read his Miranda rights, and then after he was questioned, he was advised of his Miranda rights, and he waived them, and continued to talk. So he was not given an attorney. He just continued to talk. Now Holder, Attorney General Holder said, used his words very carefully, he said that he’s providing useful information. That’s good. But like I said, we still don’t know that we’re getting the full story from the guy.
HH: Now Marc Thiessen will be on the program next hour, former Dick Cheney aide…
MI: I’m sure he wants to waterboard him, and figure that’s the…
HH: Not waterboard him, I’m sure.
MI: Let’s just waterboard him, and you know, see what happens.
HH: But he doesn’t want him Mirandized, because that indicates that we will be putting his criminal prosecution ahead of his interrogation value. Is there a debate underway? You know, the head of National Intelligence, Blair, made some comment today indicating that the decision to Mirandize Abdulmutallab, the Detroit bomber, the underpants bomber, was a mistake.
MI: Well, you know, there certainly was a huge political debate about that, but there are a couple of differences that are worth remembering, and you might bring this up with Marc Thiessen. Abdulmutallab was not a U.S. citizen. For better or worse, this guy, Shahzad, is a U.S. citizen. So for one thing, the idea of throwing him into a military brig and letting him be tried, if he’s going to be tried at all, by a military commission, the military commissions do not allow for prosecution of non-U.S. citizens. That was simply under the law not an option in this case. So you know, you’ve got to remember, you know, we are still a country of laws, we still have a Constitution. The claim that the U.S. government could by fiat declare somebody an enemy combatant and keep him indefinitely, without trial, was tested in the Padilla case. And when it was going to go up to the Supreme Court, the Bush administration got him back into the criminal justice system, because they were worried, they knew that the Supreme Court was never going to buy into that. So you know…
HH: But of course, Michael…
MI: Really, the only option here is to do something that the Supreme Court and most Constitutional scholars would agree was probably unconstitutional, and that is just declare him an enemy combatant, don’t try him at all. He is a U.S. citizen.
HH: Put aside that debate for a second, and there’s a lot more than a few who disagree with that, but not giving him a Miranda warning is not tantamount to sending him to a military tribunal. It is simply…
MI: Well, but that’s what they did. They didn’t give him his Miranda warning at first. They…
HH: But they have now.
MI: They questioned him without…
MI: Yeah, because at some point, you know, there is a public safety exception, but it’s not indefinite. You can’t, you cannot continue to hold somebody over an indefinite period of time without reading, a U.S. citizen, you know, without advising him of, him or her, of their Constitutional rights.
HH: Michael Isikoff, how long do you think that is?
MI: Well, I have, you know, I have asked that very question, and I don’t know. It’s not fixed in law. It stems, as I understand it, from a Supreme Court case that was really revolved around, if they catch somebody and they think a bomb is about to go off, or the guy’s got a gun and he’s about to shoot somebody, it really was for exigent circumstances. That’s the way it was crafted, that’s the way it was understood. It’s been stretched in these terrorism cases, but nobody really knows what the boundaries are on…
HH: It can’t possibly be one day, though, Michael Isikoff. The administration caved again.
MI: I…Like I said, like I said nobody really knows what the boundaries are. You say it can’t possibly…I mean, I don’t know. Maybe, you know, you can cite some judicial ruling that says that, but I don’t think it exists.
HH: Exigent circumstances in a nuclear age when you’ve got a terrorist who tried to blow up Times Square, and you don’t think you can go a day without Mirandizing them?
MI: Well, first of all, is they didn’t Mirandize him at first.
HH: But they did within a day, right?
MI: And he waived, and he waived his Miranda rights. Look, there probably will be a discussion of this. But all I’m saying is we are still a country of laws. You can’t just make it up as you go along.
HH: But that’s clich