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Michael Isikoff On Whether The Mirandizing Of The Times Square Terrorist Is A Good Idea

Wednesday, May 5, 2010

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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…

HH: But…

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 cliché.

MI: And you know, maybe…

HH: That’s just cliché. We’re a country of laws. I know that. I teach it.

MI: Maybe the next member of Congress or Senator you have on suggests that they should propose legislation that would allow people to hold, allow the government to hold U.S. citizens indefinitely who they suspect of terrorism. By the way…

HH: But wait a minute, Michael. Wait a minute. Don’t filibuster. That’s a cliché. I just want you to go on record stating the obvious, is that they do not know how long they could hold him without Miranda rights. They could have pushed harder. They chose not to, correct?

MI: I’m saying that the law is unclear on this.

HH: But they could have pushed harder, couldn’t they?

MI: Well, I mean, they could have pushed up against the edge of the law harder, and possibly done something that would have jeopardized, you know, their ability to hold this guy, you know, down the road.

HH: We don’t know that, though, do we?

MI: Yeah, I mean, you know, a federal judge would have said you know, you can’t hold this guy. You let him go.

HH: We don’t know that, do we? And we also don’t know…

MI: No, we don’t know. That’s my point. That’s my point.

HH: …that you couldn’t declare him, you also don’t know, you couldn’t declare him…You’re not confident, it’s not laid down in the law that you cannot declare him an unlawful combatant, is it?

MI: There have been a couple of Appellate court rulings that say you can’t. There was an assertion by the Bush administration that say you can. When it was going to be tested by the Supreme Court, the Bush administration, fearing that the Supreme Court would declare what they did unconstitutional, punted on the issue. That was the Bush administration.

HH: And so the issue for the Obama administration is they never push any of these rulings, do they, Michael?

MI: Well, in that sense, they are following the precedent set by the second term of the Bush administration. You know, now maybe you think the Bush administration veered off in that second term, and they should go back to the John Yoo theories of presidents are kings, and can do whatever they want, but you know, I think you’d have a hard…I mean, I don’t know. Maybe that’s where you are?

HH: Michael Isikoff, was that John Yoo’s theory that presidents are kings, and they can do whatever they want? Is that fair?

MI: Oh, read those, read those OLC opinions.

HH: Was that, is that a fair characterization?

MI: Yeah, because…

HH: No, it’s not.

MI: If you go back to his initial…

HH: No, it’s not.

MI: Well, Hugh…

HH: No, it’s not.

MI: I will email you tomorrow.

HH: I’ve read the OLC opinions.

MI: It says that presidents…

HH: They’re just not, they don’t say presidents are king and they can do what they want. I mean, that’s just not true.

MI: They say the president’s decisions are, on national security issues, are unlimited and “unreviewable”.

HH: That is very different…

MI: In other words, the president can make whatever decision he wants, and it cannot be reviewed or second guessed by anybody else, if he declares this to be a national security emergency.

HH: They do not even go that far.

MI: The president can do whatever he wants, correct?

HH: But Michael, you get the last thirty seconds.

MI: Yeah.

HH: Do you think that the Obama administration is open to the charge after four domestic terror incidents in less than a year that they’re not doing their job?

MI: Look, you know, today, they go their guy. They got the guy who was trying to set off a bomb. So you know, let’s give him, you know, give him a break, applaud the good U.S. law enforcement and counterintelligence work that was done here that got the guy.

HH: Oh, I do.

MI: I think that’s what we should do today.

HH: I absolutely think our guys, after the bomb got to Times Square and didn’t go off, they did a great job. But Michael Isikoff, you guys in the media that follow this, you’ve got to start demanding a high level of accountability, because we need it.

End of interview.

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