Daniel Freedman: The Real Miranda Fix Needed
May 14, 2010

By Daniel Freedman, Forbes

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The biggest problem with the Obama administration’s announcement that it’s considering modifying the Miranda warning for terrorists is not constitutional. It’s a national security objection: They’re tinkering with the wrong part of the interrogation process. The good news, however, is the underlying sentiment that the White House wants to strengthen U.S. interrogation efforts, because something does need fixing. The cases of top al Qaeda terrorists Nasser al-Bahri and Abd al-Rahim al-Nashiri are instructive in considering what changes are actually needed.

Al-Bahri (aka “Abu Jandal”–“father of death”) was Bin Laden’s chief bodyguard. He was interrogated by FBI Special Agent Ali Soufan and NCIS Special Agent Robert McFadden only days after 9/11. Abu Jandal identified the 9/11 hijackers and gave extensive information on al Qaeda’s leaders, operatives, weapons, hideouts and communication systems. The information was invaluable not only for identifying those responsible for 9/11, but also to our military for the invasion of Afghanistan, and to this day it is used in interrogating and tracking other al Qaeda operatives. Abu Jandal was advised of the Miranda warning daily.

Nashiri (aka “Mullah Bilal”) was a senior al Qaeda operative and the mastermind of the 2000 USS Cole bombing that killed 17 U.S. sailors. He was interrogated in 2002 using the most severe of the so-called Enhanced Interrogation Techniques. (FBI and NCIS interrogators were not given access to him.) Nashiri was not read the Miranda warning. Limited (if any) new intelligence appears to have been gained from Nashiri.

When other terrorist plots involving Nashri’s operatives were later disrupted, for example, no information used in thwarting them came from Nashiri. And when some of the perpetrators of the USS Cole attack were tried in Yemen a few years later, not one piece of intelligence used to convict them came from Nashiri. The intelligence used came from other al Qaeda operatives, including Fahd al-Quso and Jamal al-Badawi (who confessed their roles to FBI and NCIS agents–after being read the Miranda warning).

The lesson from the cases of al-Bahri and Nashiri (and these are representative of other cases) is that the key to a successful interrogation is not whether a terrorist is advised of a right to remain silent. What makes the big difference is who is conducting the interrogation. This is well-known among professionals in the law-enforcement and intelligence communities, but is lost among many in Washington who appear to get policy ideas from action television shows like Fox’s 24, rather than America’s real-life heroes.

The CIA’s Counterintelligence Interrogation Manual (published in 1963 and released and under a Freedom of Information Act request), for example, states that “A number of studies of interrogation discuss qualities said to be desirable in an interrogator … Perhaps the four qualifications of chief importance to the interrogator are (1) enough operational training and experience to permit quick recognition of leads; (2) real familiarity with the language to be used; (3) extensive background knowledge about the interrogatee’s native country (and intelligence service, if employed by one); and (4) a genuine understanding of the source as a person.”

The manual goes on to state (and the FBI’s manuals make the same point) that when first given a suspect, “The initial advantage lies with the interrogator. From the outset, he knows a great deal more about the source than the source knows about him. And he can create and amplify an effect of omniscience in a number of ways. For example, he can show the interrogatee a thick file bearing his own name. Even if the file contains little or nothing but blank paper, the air of familiarity with which the interrogator refers to the subject’s background can convince some sources that all is known and that resistance is futile.”

The key to successful interrogations is having subject-matter experts outwit terrorists and convince them that all is known and that denial is pointless. Reading or not reading a Miranda warning is of far less importance. Understanding this should lead the administration to rethink one of its current interrogation policies: Its creation of a “High-Value Detainee Interrogation Group.” This group (still in the works) is slated to be an elite group of interrogators based in Washington who will be piloted in to conduct interrogations of top terrorists.

This concept–that some super interrogator (read: 24’s hero, Jack Bauer) can crack any al Qaeda operative–makes the same mistake as the Miranda-warning-stops-cooperation fallacy in failing to understand that it is subject-matter expertise that makes someone a successful interrogator. And the required expertise cannot be gained simply by reading a file in a plane on the way to an interrogation. It’s gained by spending years investigating the terrorist network, tracking operations and apprehending the operatives.

An expert on al Qaeda in the Middle East, for example, might not have an impact when interrogating an al Qaeda member from Indonesia. He doesn’t know the operatives, the safe houses, the training routes, and (most importantly) the culture and mindset. As a result he doesn’t know the questions to ask, nor can he easily catch lies. It’s like sending the best mob investigator to question a top art thief. It’s a mistake.

The White House is right to focus on trying to strengthen the hand of our interrogators, but the real problem that needs fixing lies not in saying the Miranda warning, but in who is saying it.

 

To read the full article please click on the link below:http://www.forbes.com/2010/05/14/terrorism-miranda-warning-interrogation-opinions-contributors-daniel-freedman.html

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