Misplaced fury over reading of rights to detainees

In this sketch, Canadian defendant Omar Khadr, far
left, sits with his defense team, as military judge Army
Col. Patrick Parrish, top right, presides over a hearing
inside the courthouse for the U.S. war crimes
commission. (AP Photo/Janet Hamlin, Pool)

Security statists have their knickers in knots today over revelations that some terror detainees are being mirandized -- that is, read their rights. Armchair interrogators are upset that suspects held behind bars are being told that they have right to counsel and to remain silent, and accusing the Obama administration of being weak in the pursuit of terrorists. Except ... not only is this good news, the policy apparently began under the Bush administration.

In the pages of the Weekly Standard, which broke the story, Steven Hayes quotes former CIA Director George Tenet warning that information extracted from Khalid Sheikh Mohammad would have remained unknown had the detainee been aware of his rights.

"If Tenet is right," adds Hayes, "it's a good thing KSM was captured before Barack Obama became president. For, the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan."

But ... the Washington Post had FBI agents informing detainees of their rights at Guantanamo Bay well before the current president took office. In a report dated February 12, 2008, the Post said:

Officials said most of the detainees talked to FBI and military interrogators, some for days, others for months, while one or two rebuffed them. The men were read rights similar to a standard U.S. Miranda warning, and officials designed the program to get to the information the CIA already had gleaned by using waterboarding, which simulates drowning, and other techniques such as sleep deprivation, forced standing and the use of extreme temperatures.

Why, oh why, would the FBI mirandize detainees and gently question them about information that had already been tortured out of them? Oh, that's right. Because courts and the intelligence community don't have a lot of confidence in information extracted through unpleasant means, and will often refuse to accept it.

Prosecutors and top administration officials essentially wanted to cleanse the information so that it could be used in court, a process that federal prosecutors typically follow in U.S. criminal cases with investigative problems or botched interrogations. Officials wanted to go into court without any doubts about the viability of their evidence, and they had serious reservations about the reliability of what the CIA had obtained for intelligence purposes.

Whatever depths it was willing to sink to, the Bush administration was aware that much of the world would doubt the credibility of data "volunteered" by men who were dangling from the ceiling in shackles or gasping from simulated drowning.

The Obama administration seems to be taking much the same tack.

"There has been no policy change and no blanket instruction issued for FBI agents to Mirandize detainees overseas," Justice Department spokesman Matthew Miller said. "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."

The fact of the matter is, protections for rights, due process, limits on interrogation tactics and decent treatment of prisoners aren't just about being nice. They're about maintaining the credibility of a legal system so that people have confidence in the information it produces and the judgments it reaches.

It's also about making sure that you arean't wasting your time interrogating detainees who may have been scooped up through accident or malice. Without procedural safeguards and counsel, it may take you years to discover, for examples, that the Uighurs you're holding ended up in captivity because they were randomly nabbed and sold by bounty hunters.  

Due process and protection of rights are humane, yes, but even if you care nothing about that, you have to recognize that decent treatment has a very practical value. Without such safeguards, legal systems and information-gathering efforts become brutal, time-wasting jokes.

email J.D.: civilliberties (at) tuccille.com