It’s never been harder to question a terrorist.
In the midst of tracking where the next terror attack could strike in the West, counterterrorism experts and lawmakers say the Obama administration has made it harder to get fresh intelligence from terrorist sources.
The decision to no longer keep detainees at Guantanamo Bay; the administration’s preference for killing terrorists with drone strikes; and the practice of reading terrorists the American Miranda warning has made obtaining new intelligence very difficult, experts say.
“It’s really unbelievable that these guys say that their position is driven by humanitarian concerns,” former Assistant United States Attorney Andrew McCarthy told The Daily Caller. “The reason [the administration] drone[s] people, and I’m not saying they shouldn’t drone anybody — rather than capture — is because they’ve so screwed up detention and interrogation. And it’s cleaner for them to kill people — because when you kill them, that’s the end of the story.”
McCarthy, known for leading the 1995 terrorism prosecution against Omar “the Blind Sheik” Abdel Rahman and eleven others, said the Obama administration is confused about where to send detainees.
Additionally, McCarthy said, “There is political baggage as to why we are bringing terrorists into the United States and giving them grade A due process trials. A large way they handled that was to kill a lot of people who we should have been capturing and getting intelligence from, because in this global war, you’re not fighting a traditional military.”
“I’m not saying intelligence wasn’t important in every war,” McCarthy noted. “But it’s particularly important in a war against a secretive network that attacks in stealth, where intelligence is the only way you can protect yourself. They’ve sold short the intelligence product.”
Meanwhile, Republican Sen. Lindsey Graham, a member of the Armed Services Committee, is frustrated with the current system of Mirandizing detainees who are captured overseas, pointing out that some detainees are being presented with Miranda rights while aboard ships coming back to the U.S., or as they are about to touch U.S. soil.
“Under criminal law, you provide somebody a right to counsel and the right to remain silent so they don’t jeopardize their criminal case,” Graham said. “The purpose of military law is to win the war. The purpose of criminal law is to prosecute a case. I don’t look as these guys as common criminals. I look at them as warriors—enemy combatants subject to being detained under the law of war.”
Counterterrorism and Middle Eastern expert Patrick Poole says the intelligence community is “absolutely” getting less information from terrorist networks.
“The first thing the Justice Department does is Mirandize them,” Poole said. “If we drone somebody or we throw them into the legal system, we’re losing valuable opportunities to gather intel. We just don’t know how much we’re losing because of the drone program, and they never have a chance to find out.”
Poole points to the Somali pirate involved in taking the captain of an American ship — the Maersk Alabama — hostage in 2009.
“The Somali pirate who was captured ended up being transported back to New York where he was charged and had his Miranda rights read to him,” Poole lamented. “His intelligence about the pirate network was lost.”
One year later, five Somali pirates attacked the American warship U.S.S. Nicholas in the Indian Ocean. Part of the controversy of the case was whether or not these foreign nationals were properly Mirandized at sea.
National Security Law Brief states the problem of military personnel reciting Miranda rights to detainees:
“Almost universally, the suspects are detained by military personnel, a fact which leads to questions concerning their training in the use of Miranda procedures. American service members are not typically trained to inform prisoners of their Miranda rights like law enforcement officers are. This lack of training, further complicated by language barriers immediately following arrest, led to Miranda rights being a key issue of the case at hand.”
Republican Rep. Peter King, a member of the House Homeland Security Committee, told TheDC that terrorists are given “too many rights” by the United States.
“I know, for instance, they can’t claim Miranda right away, but they can claim it earlier than they should be able to claim it,” King said. “That was the whole issue of the Boston Bomber and with the Times Square Bomber and also the guy they captured—bin Laden’s son in law. He was kept on a ship for a while, but then they ended up Mirandizing him.”
President Obama promised to close the U.S. compound in Guantanamo Bay, Cuba at the beginning of his administration in 2009. A number of detainees have already been released and many have returned to the battlefield. Right now, 127 detainees remain at Gitmo and are awaiting release or transfer.
House Homeland Security Chairman Mike McCaul said that recent intelligence has been “sort of stale.”
“We got a lot of fresh information after 9/11,” McCaul told TheDC. “What’s left down there is the worst of the worst in terms of terrorists — and releasing them like we did the Taliban five is a very dangerous exercise.”
During the Bush administration, the U.S. took prisoners to top secret “black sites,” in Romania or other countries, Poole said. “So they were never officially in the U.S. system–guys like Abdel Hakim Belhadj who the CIA renditioned back in Libya in 2004. They caught him in Thailand and the CIA renditioned him. And he ended up being the guy we backed who overthrew Gaddafi.”
In fact, the Washington Times reports the Pentagon has ordered judges who oversee military tribunals at Guantanamo Bay to stop handling cases in other countries and deal exclusively on closing the cases of detainees charged with terrorism.
“Because of the legal maneuvers to try and free these guys in Gitmo, there are other various problems,” Poole said. “The Obama administration has openly embraced droning these guys. And now there are some reports that nearly 2000 people have been killed in these drone strikes. The number of people they were actually targeting is in the dozens.”
“So that’s the flip side into all this law-fare that’s been waged to get these guys released,” Poole went on. “It’s now been the position of the Obama administration, ‘We’re just gonna kill ’em.'”
“From a public safety stand point, where are we going to put them?” Rep. McCaul wondered. “We know they return to the battlefield to kill Americans. They’re going to return to conduct terrorist plots in America and Western Europe. Frankly, I don’t think we should be shutting [Gitmo] down.”
Ned Price, a spokesman for the National Security Council, told TheDC that the government does what it can to pull information from detainees.
“As a general rule,” Price said. “The government will always seek to elicit all the actionable intelligence and information we can from terrorist suspects taken into our custody.”