Still Bananas Over Miranda

A few weeks ago, Mike Rogers was making the right-wing news rounds with dire predictions about the dangers of Mirandizing Afghan detainees.

More recently, Mr. Rogers has been spreading the "news" in the local media, like WHMI and the Press & Argus.

"As an American citizen, it chills my blood to think that these foreign fighters from other nations who enter Afghanistan to kill our soldiers and allies are being given the same rights as American citizens accused of a crime," Rogers said in a statement.

CQ Politics' Jeff Stein was intrigued by this story of chilled blood (not to mention the chaos), so he talked with the Michigan Republican about his concerns.

Turns out that Mr. Rogers, on his most recent taxpayer-funded trip to Bagram Air Base, sat in on a meeting to which he had not been invited:

“I’m telling you, it was being implemented,” added Rogers, who slipped his minders at Bagram long enough to join a regular morning meeting of FBI, CIA, Defense Department and other U.S. agency personnel involved in interrogations.

“I saw it. I talked to people who were doing it,” he said.

(As Rhett Butler once noted, eavesdroppers often hear highly entertaining things...)

Stein interviewed some very credible people who were not going bananas over a policy which has been in place since 1998.

“Whether a person is Mirandized or not, he can remain silent,” Marion “Spike” Bowman, a former senior legal counsel to FBI Director Robert S. Mueller III , pointed out for me.

“Interestingly, with a good interrogator, most do not,” added Bowman, who was also at one time a legal adviser to the Navy’s elite counterterrorism unit, SEAL Team Six.

“A Mirandized person may be interrogated — whether he responds is a different matter,” Bowman said. “Some, in fact, related details that ratted out relatives. The Arab culture is not like ours and the ‘right to remain silent’ is not a part of their culture.”

FBI Director Robert Mueller wrote to Reps. Rogers and Wolfe (R-VA), stating that there has been "no policy change and no blanket instruction" issued for FBI agents to Mirandize detainees overseas.

For detainees held in military custody overseas, approval by the Department of Justice is required before Miranda warnings may be given. [skip]

There are cases in which FBI agents have provided Miranda warnings to persons captured and held overseas, at Bagram and elsewhere. In those cases, a determination was made that a prosecution in an Article III court may be in the interest of national security and that providing Miranda warnings (modified to take into account the overseas location of the detainee) was, therefore, desirable to maximize the likelihood that any resulting statements would be admissible at trial. In practice, Miranda warnings have been provided to Bagram detainees in only a small handful of cases out of over 4,000 individuals detained and interrogated by the FBI.

Faced with this, um, discrepancy between Mr. Rogers' allegations and statements by the Director of the FBI and senior DOJ officials, Stein asked the question that so many media types have been dodging:

I asked the former G-man if he was calling the head of the FBI a liar.

He paused.

"I don't know what Mueller's doing," he said. "There's certainly a contradiction between this and what Mueller told me."

If things are really as bad as this self-styled national security expert (and former FBI Guy) says, shouldn't he be leading a House investigation instead of playing games with nonsense amendments?

If It's On Fox, It Must Be True!

The FauxNews machine is working overtime to promote Mr. Rogers' recent trip to Afghanistan.

According to Mr. R., the Obama administration is "creating chaos in the field among the CIA, FBI and military personnel" by "quietly ordering the FBI to start reading Miranda rights to suspected terrorists at U.S. military detention facilities in Afghanistan."  

[It would be interesting to determine the amount of time Mr. Rogers spends "in the field" relative to "inside the gates of Bagram Air Base."]

Chaos in the field?  That's a pretty serious statement.  

Yet U.S. military commanders told Fox that soldiers aren't Mirandizing anyone, and a DOJ spokesman stated that

"There has been no policy change nor blanket instruction for FBI agents to Mirandize detainees overseas," he said in a statement, adding, "While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees."

It's worth noting that no other mainstream news source seem to be reporting this. Other than the usual suspects in the right-wing blogosphere, no one else is talking about it.  Some conservative bloggers are hedging a bit:  

More confirmation is needed before a general outcry takes hold 

Even The Weekly Standard has held off on a hissy fit: 

A lawyer who has worked on detainee issues for the U.S. government offers this rationale for the Obama administration’s approach. “If the US is mirandizing certain suspects in Afghanistan, they’re likely doing it to ensure that the treatment of the suspect and the collection of information is done in a manner that will ensure the suspect can be prosecuted in a US court at some point in the future.”

That's right, folks: evidence given under duress [i.e., torture] is inadmissible in a court of law. You can't prosecute the bad guys without evidence.  Ergo, all law enforcement professionals -- from local cops to the FBI -- know that they need to play by the rules when capturing and interrogating suspects or they risk letting dirtbags walk out of the courtroom.

Approaching terrorism as a law enforcement issue instead of a military issue isn't a new idea. The United States tried and convicted Sheik Omar Abdel-Rahman for the 1993 bombing of the World Trade Center.  Abdel-Rahman was sentenced to life in prison and has been sitting in SuperMax since 1996.  The British, no strangers to fighting terrorism, have successfully prosecuted such cases through their court system for years.

Mr. Rogers once again turns to the emotional anecdote in lieu of sensible policy.  If he's genuinely concerned about troop safety and national security, and convinced of the facts, why isn't he shouting this from the rooftops instead of selectively whispering into friendly ears?  

UPDATE:  The American Prospect has a post on Gen. Petraeus' press conference, where he stated that 

"This is the FBI doing what the FBI does," Petraeus replied. "These are cases where they are looking at potential criminal charges. We're comfortable with this." He denied that his soldiers and other relevant American agents are reading Miranda rights to detainees, some of whom are detained as enemy combatants, while others are high-value anti-terror targets. (A U.S. federal court recently ruled that some Bagram detainees have the same habeas rights as prisoners in Guantanamo Bay.)

While it seems that Rogers (and the Fox News correspondent) are happy to play up fears that the Obama administration is soft on terror, Petraeus' didn't seem to concerned by the DOJ practice, which the DOJ denies began with the current administration. In another portion of his speech, discussing the comprehensive strategy launched against Al Qaueda in Iraq as an indirect model counter-terror operations in Afghanistan, Petraeus noted the importance of counter-insurgency amoung detainee populations and the need for releasing certain detainees to help win over the populace, noting that by the end of his time in Baghdad the recdivism rate among released detainees was a very impressive 1 percent.  [emphasis added]

General Petraeus says that his troops aren't Mirandizing detainees -- and he's not concerned about the FBI doing so.  Mr. Rogers says that IS happening.  Does that mean the four-star general is "soft on terror," or does that mean the congressman is a manipulator "misinformed"?