The Wall Street Journal:

The Supreme Court’s 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

Matthew Miller, a Justice Department spokesman, said the memo ensures that “law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents.” He said “the threat posed by terrorist organizations and the nature of their attacks—which can include multiple accomplices and interconnected plots—creates fundamentally different public safety concerns than traditional criminal cases.”

Firedoglake’s Marcy Wheeler outlines why an FBI memo allowing for abbreviated Constitutionally-mandated Miranda rights flies in the face of Supreme Court rulings:

It is not as if this is some kind of unexplored area with no legal precedent; there is clear precedent on the nature of Miranda rights. In Dickerson v. United States 530 U.S. 428 (2000), the Supreme Court left no mistake as to the nature of Miranda:

But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 517—521 (1997). This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction.
….
In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively.

Furthermore, the “public safety exception” the administration disingenuously bases their new Miranda policy on, is limited and does not support their expansive power grab. The public safety exception, first announced by the Court in Quarles v. New York, applies only where there is an imminent and immediate “great danger to public safety” and the officer who questions the suspect reasonably believes the information sought is necessary to protect the immediate public safety and the questions are limited to only those necessary to obtain the information to mitigate such threat. That is NOT what the Obama/Holder DOJ is contemplating or restricting their policy to and, thus, their policy is simply unconstitutional and inappropriate.

Let us not forget, this attempt by the administration is not aimed at terrorists and enemy combatants on foreign soil, it is aimed squarely at individuals arrested on domestic soil under the regular Article III criminal system. The law is quite established that the reading of the Miranda warning does not confer rights upon the arrestee, the rights are inherent and flow from the Constitution.

The American Prospect’s Adam Serwer points out that Miranda rights don’t apply to interrogation rules, just what can be allowed as evidence in court.

So are Miranda rights being gutted here? I think that overstates what’s happening. Miranda does not govern interrogation. It governs the admissibility of evidence in court. The FBI can interrogate someone without giving them Miranda warnings, it just can’t use the information from that interrogation against them. The Supreme Court never stated that Miranda warnings were mandatory, just that statements would be inadmissible without them. So I’m not sure this actually changes anything with regards to defendant’s rights, but it certainly may make it harder for the FBI to convict terrorists by making fewer of the statements they get admissible.

Serwer also notes that this action by Obama’s DOJ is likely the product of kowtowing to Republicans that politicized Miranda rights in claiming offering terror suspects like Umar Farouk Abdulmutallab — the Christmas Day ’09 “underwear bomber” — such Constitutional rights squanders intelligence-gathering opportunities. In addition, Serwer contends, the move could be to avoid Congress from pressing for the Department of Defense to handle domestic terror cases rather than the FBI.

Republicans have attacked the administration for “giving” terror suspects constitutional rights they already have, and the administration is concerned about looking soft on terrorism. But because Republicans know this isn’t an actual problem, they rebuffed administration overtures to codify a public safety exception with legislation. But by by issuing this memo, the administration has conceded the point. While not solving an actual national security problem, this further erodes the administration’s argument that Miranda does not impede intelligence gathering.

[...]

A secondary question though, is whether by doing this–or rather, by leaking word of the memo–the administration is trying to hold off efforts by Republicans to mandate that all domestic terrorism cases be handled by the military by assuaging fears that the FBI isn’t making intelligence gathering first priority in interrogations.

The initiative is a move to ask Americans to help local law enforcement by keeping their eyes peeled for “suspicious activity,” DHS Secretary Janet Napolitano and NBA Commissioner David Stern told press at the Verizon Center in Washington, D.C. The emphasis toward civilian “suspicious activity reporting” has surged in recent years, but advertising campaigns and high-profile partnerships have really begun to take off.

In December, DHS joined forces with Wal-Mart, launching the ‘If You See Something, Say Something’ campaign initially in 230 Wal-Mart stores, with a target of 588 sites in 27 states. A short video plays at select checkout stations, telling shoppers to call local police if they see something suspicious. (The term “suspicious,” by the way, is rarely elaborated on or defined by DHS in campaign messages.)

Moving on to sports, DHS partnered with the NFL with its campaign at the Super Bowl in Dallas early this month. And now the NBA.

“We hope that this partnership will emphasize basically that security is a shared responsibility,” said NBA Commissioner David Stern at yesterday’s press event. “We think that sports is a terrific way to send messages, and to get people who go to events to focus on this very important message.”

Or maybe Napolitano is just a big sports fan.

“Our partnership with the NBA to bring the ‘If You See Something, Say Something’ campaign to professional basketball events throughout the nation is a vital part of our efforts to ensure the safety of players, employees and fans,” she told the press.

Inquiries have begun over how effective these campaigns are at protecting the country from terrorism. With sports fans and budget-conscious shoppers reporting “suspicious” activities every 10 minutes, does that help the security agencies or overwhelm the system?

David Rittgers, a legal policy analyst for the Cato Institute, said he thinks the national security agencies are overwhelmed with information.

“While there is value in getting a person on the street to be aware and report suspicious activities, you can also create too many false positives,” Rittgers said.

Rittgers said the Federal Bureau of Investigations receives about 700 messages a day, and the National Counterterrorism Center receives about 10,000 pieces of information daily. Clogging the system with even more reports of indiscriminate “suspicious activities” won’t necessarily bring these agencies closer to the information they need to prevent terrorist plots.

“People talk about connecting dots,” he said. “But it’s knowing which dots to connect that has value. …. The commitment to simply collect all the dots might not be as useful as a lot of people would propose.”

For example: “It’s not illegal to purchase a ski mask, it’s not illegal to purchase a gun, it’s not illegal to sit outside a bank. But it’s when you put those all together.”

The measure of success is still to be seen, but meanwhile the money is flowing.

“If You See Something, Say Something” are now being posted all over the country, according the DHS: on 9,000 federal buildings nationwide, at the Mall Of America, the American Hotel & Lodging Association, Amtrak, the Washington Metropolitan Area Transit Authority and the general aviation industry.

DHS allocated $2.9 million for the campaign in 2009, but an official told CNSNews.com that the agency has only spent $500,000 on the campaign to date, saying it is focusing its efforts on partnerships –- outsourcing security, if you will. And while Napolitano told the network the campaign has resulted in the launch of several investigations, she said it’s still difficult to measure whether it will effectively deter would-be terrorists.

Gohmert argued with host Anderson Cooper, who asked him to provide proof to back up his claims about the phenomenon. He said “the evidence abounds” but failed to produce a source for his information, other than an anonymous former FBI agent. (Watch the video here.)

Observers note the argument is a convenient one, politically, because it can’t really be proven right or wrong in the short term. The effects of the supposed phenomenon are too far in the future: If “terror babies” are being born in the U.S., we won’t know it for about 20 years. The delayed impact of such measures is one of the main reasons Gohmert’s argument is unfounded, according to Ruben Navarrette Jr. He argued at CNN today that Gohmert and other Republicans are relying on fear-mongering to obscure the immigration debate:

If the supporters of SB1070 really believe in the merits of their cause, they should be able to win the argument on the natural, without relying on hocus-pocus or scare tactics or radical makeovers. And if they can’t do that, if they have to portray babies as terrorists and immigrants as drug mules in order to win support for their side, then this should tell them loud and clear that they’re on the wrong side of this issue — not to mention, on the wrong side of history.

Republican statements on the 14th Amendment’s birthright citizenship are numerous, but they’re also all over the place — and Gohmert seems to be on the radical edge his party’s leaders are trying to avoid. Senate Minority Leader Mitch McConnell and the Republican National Committee have made a point of steering clear of claims of “terror babies” and racially-charged statements about border-crossers. Instead, they have focused on a Washington Post article on “birth tourism,” a proven, if not especially prevalent, practice of Chinese women paying to come to the U.S. to have citizen babies.

Gohmert tried to back up his claims about the 14th Amendment and terror risks using the Washington Post article, too. But “birth tourism” seems to be a separate concern: the article does not mention terrorism.

“Israel is one of our strongest and most important allies,” Reid said in a short statement, “and the United States stands firmly with Israel at this critical time.”

I deeply regret the loss of life in the flotilla incident, including the death of an American citizen.

Israel has an obligation to protect its citizens and therefore has a clear right under international law to prevent weapons from getting in the hands of terrorists determined to target them.  Israel indicated it was willing to put in place a process to ensure that legitimate humanitarian relief reached Gaza.  Unfortunately this offer was rejected.

Israel has pledged to carry out a transparent and thorough investigation of this incident, and I look forward to its findings.

As does the rest of the world.

John Brennan (UPPA/ZUMApress.com)

“We will destroy al-Qaeda.”

That’s how John Brennan capped his presentation Wednesday morning on counterterrorism’s role in the forthcoming National Security Strategy, and the often intense White House senior counterterrorism adviser smiled a bit as he said it. His exploration of the administration’s pathway for getting there was mostly familiar. “A broad, sustained integrated campaign” making use of “every tool of American power: military, civilian, kinetic and diplomatic, and indeed, the power of our values and partnerships,” will sustain “pressure” on al-Qaeda in “Afghanistan, Pakistan, Yemen, Somalia and beyond” while addressing the “political, economic and social forces” that can create either demand for extremism among populations or acquiescence to it. Judge for yourself how that fits within the broader National Security Strategy.

[Security1] But Brennan did highlight a new development the Obama administration faces — and subtly defended a controversial tactic that he says contributed to it. Al-Qaeda and its affiliates have entered a “new phase” of their campaign against the United States, relying on operatives with “little training” who don’t fit “the traditional profile of a terrorist” for attacks of “little sophistication but with very lethal intent.” English-speaking al-Qaeda allies like California metalhead-turned-extremist Adam Gadahn and Yemen-based radical preacher Anwar al-Awlaki, both American citizens, seek to inspire people already in America to execute their own independently planned terrorist attacks.

All of these moves, Brennan said, are tactical responses from al-Qaeda to a successful pressure campaign from the U.S. and its allies abroad to reduce its safe havens and to hardened U.S. homeland security measures by law enforcement and at ports of entry, for which the Bush administration deserves some credit. And in only the vaguest terms, without making an explicit reference, he suggested that the drone strikes the administration has accelerated and exported in Pakistan, Yemen and Afghanistan are a principle reason for al-Qaeda’s adjustment. Limited by an ability to speak publicly about a classified program, Brennan signaled as well that the administration is concerned that blowback from civilians killed by the drones could turn tactical success into strategic failure — but thinks the problem is under control.

In all efforts, we will exercise force prudently, recognizing that we often need to use a scalpel and not a hammer. When we know that terrorist networks are plotting against us, we have a responsibility to take action to defend ourselves, and we will do so. At the same time, an action that eliminates a single terrorist but causes civilian casualties can in fact inflame local populations and create far more problems. A tactical success but a strategic failure. So we need to ensure that our actions are more precise and more accurate than ever before. This is something that President Obama not only expects but demands.

It’s difficult, if not impossible, to independently verify Brennan’s claims. Anecdotal reporting indicates that the drone program is expanding beyond precisely targeted top extremist leaders to mid-level operatives and below. There’s also a low-level rumbling in intelligence circles that the CIA’s drone strikes cause fewer civilian casualties than those executed by the military, particularly in Afghanistan, and the agency doesn’t like the media conflating two different programs. But any differences in impact on local populations are extraordinarily difficult to verify.

Brennan’s forecast of success against al-Qaeda rested on another foundation: It’s in America’s power to determine how it will react to terrorism. Al-Qaeda’s enduring strategy is to get America to “overextend” itself and compromise its values, thereby weakening the sources of its strength and isolating it internationally, until it retracts its overall global posture. “We must be honest with ourselves,” Brennan warned. “No nation, no matter how powerful, can prevent every attack from coming to fruition.” But just as the U.S. has an obligation to destroy al-Qaeda proactively, he said, it also has a responsibility not to overreact in the event of a successful attack.

“Al-Qaeda can sew explosives into their clothes, and can place explosives in an SUV, but it is our choice how to react,” he said. “They can seek to recruit people already living among us but it is our choice to treat those communities with suspicion or to support those communities.”

I asked Brennan if the Obama administration was counterproductively compromising American values by retaining policies of indefinite suspension without charge at Guantanamo Bay and beyond. “When this administration came in, in January of last year, we dealt with a number of legacy situations that we wanted to make sure we were able to deal with appropriately without compromising the security of the American people,” Brennan said.

I think as everybody recognizes, on both sides of the political spectrum, the situation at Guantanamo is a very, very difficult and challenging one. I think that even as the president said he was determined to close Guantanamo within one year, it still remains open because the president is determined not to do anything that would compromise America’s security. It is something that we are working very closely with the Congress on. We are trying to do things in a very thoughtful manner. We have transferred about 50 of those detainees over the past year and a half, and we’re continuing to look at their situations there. But this is a challenge that we need to look at from a policy perspective, from a legal perspective as well as from a security perspective.

Assistant to the President for Counterterrorism and Homeland Security John Brennan (EPA/ZUMApress.com)

John Brennan has a tough rhetorical job ahead of him Wednesday morning. Speaking to the Center for Strategic and International Studies, Brennan, President Obama’s most influential terrorism and intelligence adviser, will attempt to reconcile the harder edges of Obama’s escalation in Afghanistan and his enthusiastic embrace of drone-enabled assassinations of terrorists with the broader approach to grand strategy that the White House will finally unveil this week. Some wonder if that reconciliation is even possible.

The National Security Strategy will be formally unveiled on Thursday. And Brennan won’t be the only senior official previewing it and amplifying its themes. Secretary of State Hillary Rodham Clinton, just back from a wide-ranging trip to China, will present it to the Brookings Institution. Vice President Biden will do the same on Friday, to the graduating class of Navy midshipmen at Annapolis. Jim Jones, Obama’s national security adviser, has said that the “defining feature of our foreign policy” is that the U.S. is “willing to commit to a new era of engagement based on mutual interests and mutual respect.” He’s finalizing the details of his own National Security Strategy-related speech.

Brennan tried this once before — at CSIS, in fact, last August. But back then, Brennan was more interested in articulating discontinuities with the Bush administration in how Obama handled terrorism, such as eschewing a war-centric construct for viewing the conflict and taking it away from Islam. One senior administration official, Dan Benjamin, the State Department’s counterterrorism chief, has urged an expansion of that critique, arguing last June that U.S. strategy needs to “shift away from a foreign and security policy that makes counterterrorism the prism through which everything is evaluated and decided.” The National Security Strategy is supposed to be that prism, but it remains to be seen how the administration’s counterterrorism efforts can be viewed through it.

Marc Lynch, a professor at George Washington University and a non-resident scholar at the Center for a New American Security, grapples with that reconciliation in a forthcoming paper for the influential think tank, and doesn’t come away with particularly easy answers. “The problem they face is they make a series of pragmatic decisions, each on its own terms, and you can see the logic behind any of them,” Lynch said. “But add it all up, and you see the implementation is clearly at odds with the philosophy.”

All of which are unilateral actions that have met with significant opposition overseas. None easily fit within the framework of “a new era of engagement based on mutual interests and mutual respect.” A senior Republican congressional aide agreed that that framework was the “essence” of Obama’s foreign policy. “There are norms and there are laws and ways of doing things in the world that we in the U.S. have in large part put into place, and sustain,” summarized the aide, who declined to speak for attribution. “Those laws, norms and ideas are above every nation and every nation has a responsibility to uphold them. So we need to do better at meeting our responsibilities and so too, incidentally, does the Iranian government.”

Obama’s approach to Afghanistan might not be such an anomaly, even if the recipient of the Nobel Peace Prize inherited the war he has escalated. That’s because even though Obama has nearly tripled the number of troops in Afghanistan, by July 2011 the so-called “extended surge” will begin to give way to more of a supporting role for U.S. forces. What’s more, as Afghan President Hamid Karzai’s visit to Washington two weeks ago highlighted, Obama has recast relations with both Afghanistan and Pakistan in terms of long-term diplomatic, economic and security cooperation, beyond just counterterrorism. What’s more, not only is military action in Afghanistan a multinational affair operated by NATO and not the U.S. alone, it is specifically legally authorized by the U.N. Security Council. Lynch, a former Obama campaign adviser and a critic of the Afghanistan war, observed, “Afghanistan is a big hole in the strategy in all kinds of ways of ways that matter, but not in a conceptual way.”

Heather Hurlburt, an administration ally at the progressive National Security Network, said that the problem is indicative of an inherent tension between a rules-based international order and the prerogatives of a superpower. “What any administration says is the strategy and what the national-security apparatus does on a day-to-day basis are not necessarily the same thing, especially early on,” Hurlburt observed. The role of a National Security Strategy isn’t necessarily to eliminate those tensions, but rather to bring the military and the intelligence services into rough alignment with the broader vision. “It’s a very powerful signaling mechanism across the government and outside of it, to say ‘We’re serious about this rules-based multilateralism, this human rights stuff, this non-proliferation stuff, and you can’t outlast it.’”

But if the administration keeps granting itself exceptions to following the international order for the exigencies of terrorist emergencies, Lynch said, it will be left without the intellectual underpinnings — and, accordingly, the public support — for an appropriate response if a terrorist attack ultimately succeeds. “What i’m afraid of is that as soon as you get turbulence — like an actual terrorist attack — there’s going to be a big backlash and you can’t hold the overall structure in place,” Lynch said. “Right now, Obama’s got the rhetoric, but they’ve done precious little to institutionalize it and put on durable legal foundations.”

Assuming the report pans out — and I doubt it wouldn’t — it’s telling that President Obama will have fired an intelligence chief after several low-grade attempted terrorist attacks failed but President Bush didn’t fire his after a major domestic terrorist attack succeeded.

Holder is scheduled to testify today to the House Judiciary Committee this morning. In advance of a possible colloquy on weakening Miranda, as Holder suggested during Sunday show interviews, the three retired FBI special agents — Jim Clemente, Joe Navarro and Jack Cloonan (Cloonan was part of the FBI’s bin Laden unit) — write: “If we abandon our laws and apply draconian methods in response to terrorist threats, then the terrorists and their quest for lawlessness will have won.” That victory, they say, will “jeopardize our ability to bring those terrorists to justice later.” They don’t want any legislative tinkering with Miranda, fearing new rules that will “unnecessarily constrain law enforcement officials and hinder their ability to adapt to unforeseen situations.”

The FBI agents’ letter, written under the aegis of Human Rights First, is below:

President Barack Obama
The White House
1600 Pennsylvania Ave. NW
Washington, DC 20500
May 13, 2010

Dear Mr. President,

We write to express concern about reports that your administration is considering modifications to the public safety exception to Miranda v. Arizona. As professional interrogators who have spent decades questioning accused criminals – including spies and terrorists – we are writing to make clear that interrogators can do their job using the existing Miranda rules. No changes are necessary. In fact, changes might do more harm than good.

Miranda rights are important and play a vital role in our work. As interrogators who have sat across the table from those who seek to harm our nation and its citizens, we assure you that existing Miranda rules are nimble enough to handle situations as they arise.

In fact, when the Supreme Court recognized a public safety exception to Miranda, it highlighted the importance of trusting the instincts of law enforcement professionals in dangerous situations. “The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety.”

Legislating on this subject could very well result in rules that unnecessarily constrain law enforcement officials and hinder their ability to adapt to unforeseen situations.

In our decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with our ability to obtain useful information or make prosecutable cases. Miranda doesn’t undermine the ability to bring criminals to justice, incompetent investigators and untested laws do. We must not abandon our nation’s fundamental rule of law in the name of preserving public safety and convicting terrorists. If we abandon our laws and apply draconian methods in response to terrorist threats, then the terrorists and their quest for lawlessness will have won. What’s more, their victory will jeopardize our ability to bring those terrorists to justice later.

We urge you to stand up for the rule of law and the ability of interrogators to effectively do their job.

Jim Clemente
FBI Special Agent (Ret.)

Jack Cloonan
FBI Special Agent (Ret.)

Joe Navarro
FBI Special Agent (Ret.)

The sun rises over Camp Delta at Guantanamo Bay. (MICHELLE SHEPHARD/TORONTO STAR)

GUANTANAMO BAY — The military judge presiding over Omar Khadr’s military commission on Monday handed the 23-year old Canadian citizen something he’s grown accustomed to in his eight years in U.S. detention centers: delay.

[Security1]Col. Patrick Parrish today granted the government’s request to conduct an independent psychological examination of Khadr, who is charged with killing an Army Special Forces sergeant in Afghanistan in 2002. That exam, Parrish ruled, must occur before the defense can present its own expert mental-health witnesses in a hearing to argue that Khadr’s statements to his interrogators at Bagram Air Field and Guantanamo Bay ought to be inadmissible before the commission. The effect, said Khadr’s attorneys — who were reading Parrish’s ruling while holding an impromptu press briefing late Monday afternoon — will almost certainly be to pause the hearings for what the ruling calls “a period of four weeks” beginning next Monday.

“My general sense from a quick scan of the order that the judge doesn’t purport to actually compel Mr. Khadr to participate in the examination, but my expectation is that he will conclude that if Mr. Khadr does not participate, then it will be unfair for us to present our mental health testimony,” said Barry Coburn, one of Khadr’s attorneys. “It looks to me that what the judge is intending to do is adjourn, basically stop the hearing for a four-week period after the government completes presenting its evidence, which could occur tomorrow or the day after.”