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Habeas & Miranda rights for terrorists

The classic question about counter-terrorism strategy is law enforcement v. military action. After 9/11 we saw a strong shift toward the military option, but that seems to be shifting on several fronts. All three branches of our government are involved with this and a lot of checking and balancing has occurred between them as we work out how we will capture, try and detain terrorists.

We currently operate the facility at Guantanamo Bay, another at Bagram airbase and  others where we detain captured terrorists for interrogation and in some cases simply to prevent them from committing future atrocities. In April of this year a US District Court judge ruled that several prisoners held at Bagram could challenge their detention using Habeas Corpus. Now we hear that the FBI is taking an increasing role in the interrogation of terrorists there and is reading them Miranda rights.  This tells the terrorists that they get a lawyer and don't have to answer questions. This might be a good thing if your main goal is to be able to try them in US Courts, it is much less so if your goal is to gather actionable intelligence to prevent future attacks.

This means that the government must produce evidence acceptable for admittance is US courts to hold them over for prosecution. This is a very high standard and one that will certainly cause difficulties. In the case of terrorist captures it is often not possible to gather evidence in a fashion that will be acceptable in US court. Classified methods and sources can be involved and the very capture itself will often occur under dangerous circumstances hardly conducive to a CSI style sweep of the area for incriminating evidence. In addition the military personnel who conduct these operations are not FBI agents or Federal Marshals trained to follow evidentiary procedures that will withstand the scrutiny of the court and attacks from defense lawyers.


Terrorists operate all over the globe and in order to interdict future attacks we must conduct both covert intelligence gathering and operations to capture or kill them. In many or even most cases it will not ever be possible to gather sufficient evidence to construct a case that is winnable in US courts. This is especially true if we wish to stop attacks from happening. Every day we continue to investigate and gather evidence is one day closer to an attack happening. Our lack of human intelligence assets means we rarely have inside information as to the exact plans of a terror group. We are often lucky to simply be able to locate a particular terrorist leader. If we can do that we have an obligation to capture or kill him as attempting to simply track or trace him is beyond our ability to guarantee. The alternative is to jeopardize the safety of Americans everywhere.

The farther the bar moves towards giving captured terrorists the full rights of US criminal defendants the less likely it is we will be able to capture them and either prosecute them or preventatively detain them successfully. That requires some major decisions from those tasked with counter-terrorism in the field. First whether capturing terrorists is worth the risk to our own personnel. A raid to capture a prisoner is exponentially more difficult and dangerous than one to simply kill him. The best example of that is the targeted killings of al Qaeda and Taliban leaders using UAVs and missiles. There is almost no risk to our personnel who are hundreds or even thousands of miles away in complete safety. As long as the information about the intended target is accurate, this is a nearly risk free operation. The problem is that there can be civilian casualties associated with these strikes and that has a large effect on our ability to turn the local populace against the terrorists. A step closer to the target puts a team on the ground to positively ID the target either ensure there are no civilians or to take the target out with a very precise strike or a rifle shot. This is much riskier as it puts our personnel in enemy territory.

If the capture of a terrorist is attempted the risks and attendant difficulties skyrocket. This is the most dangerous mission of this type we can conduct. Simply coordinating the operational and logistical concerns is a staggering chore. An immense number of things have to go perfectly for a successful conclusion. To add the task of evidence collection risks the lives of all those involved. There will be occasions where there is evidence readily available and the capability to bring it out with the target, but to have that as a requirement makes the job near impossible. There is no time to linger during a raid rifling through desks or poking around in closets to find that damning receipt proving the target's complicity in a federal crime.

Al Qaeda is at war with the United States and they have said so categorically. We need to ensure that our strategies and tactics in response acknowledge that. If there are occasions where there exists evidence that can be put out in a federal court and shared with defense lawyers without compromising our intelligence efforts and sources then we should use that option. But the majority of times we have the opportunity to kill or capture a known terrorist that will not be the case and we need a process for dealing with those we do capture reflecting that reality.

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