Category: Terrorism

A Slightly Longer Answer

The other day, we said the short answer is that the killing of Osama bin Laden was lawful.  Some have asked for a bit more detail in the answer.  We can’t give the full answer, of course, but we can give a slightly longer one than we did.  A full...

We’re Glad You Asked That

It’s only been a few days since Osama bin Laden was killed in a U.S. military assault on his compound in Pakistan.  And in those few days, the internet has been buzzing with discussions, debates and hand-wringing over whether the U.S. acted lawfully.  We’ve been reading thoughts of people on...

An Unnecessary Rule: FBI Memo on Mirandizing Terror Suspects is a Waste of Paper

So on Thursday the WSJ reported that the Obama administration has changed the rules of investigating terror suspects, to permit interrogation without Miranda warnings in certain circumstances: A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that...

Right for the Wrong Reasons: Why terrorists and enemy combatants don’t belong in civilian criminal courts

Last week, the House passed a bill that would prevent the federal government from prosecuting Guantanamo detainees in civilian courts (by cutting off the funds to do so).  The Senate is now considering it as part of the 1,900-page omnibus spending bill.  This is largely seen as a reaction to...

Learning About Lawfare

On our main website, we wrote a brief primer on international law, mostly for our own enjoyment.  (The same reason why we write this blog, actually.)  To our constant amazement, it gets cited heavily around the internet, and has been on the syllabus of at least a couple law school...

Can Yoo Be Sued?

In the early days of the War on Terrorism, the Bush administration wanted to know what interrogation techniques were legal.  So it asked the DOJ’s Office of Legal Counsel for a memo on what could and could not be done to prisoners.  Staff lawyer John Yoo was tasked with doing...

Holder’s Wrong. Terrorism’s No Reason to Relax Miranda

The Washington Post reports that the Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because …

Gitmo Prosecutors Trying to Re-Sentence Hamdan

  In August, Osama bin Laden’s driver Salim Hamdan was sentenced by a military commission at Guantanamo Bay to 66 months, with credit for time served. It is now reported that, on September 24, the military prosecutors moved for reconsideration of that sentence. Their basis for reconsideration is that the...