111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-189
======================================================================
RESOLUTION OF INQUIRY REQUESTING THAT THE PRESIDENT AND DIRECTING THAT
THE ATTORNEY GENERAL TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL
INFORMATION IN THEIR POSSESSION RELATING TO SPECIFIC COMMUNICATIONS
REGARDING DETAINEES AND FOREIGN PERSONS SUSPECTED OF TERRORISM
_______
June 26, 2009.--Referred to the House Calendar ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
MINORITY VIEWS
[To accompany H. Res. 537]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 537) requesting that the President and
directing that the Attorney General transmit to the House of
Representatives all information in their possession relating to
specific communications regarding detainees and foreign persons
suspected of terrorism, having considered the same, reports
unfavorably thereon without amendment and recommends that the
resolution not be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background....................................................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 5
New Budget Authority and Tax Expenditures........................ 5
Committee Cost Estimate.......................................... 5
Performance Goals and Objectives................................. 6
Constitutional Authority Statement............................... 6
Advisory on Earmarks............................................. 6
Section-by-Section Analysis...................................... 6
Minority Views................................................... 6
Purpose and Summary
On June 11, 2009, Congressman Mike Rogers (R-MI) introduced
H. Res. 537, a resolution of inquiry. The resolution requests
the President, and directs the Attorney General, to transmit to
the House of Representatives not later than 14 days after the
date of adoption of the resolution, copies of any portions of
all documents, records, and communications in their possession
referring or relating to the notification of rights under
Miranda v. Arizona, 384 U.S. 436 (1966), by the Department of
Justice, including all component agencies, to foreign persons,
captured in Afghanistan, who are suspected of terrorism and
detainees in the custody of the Armed Forces of the United
States in Afghanistan.
Background
HOUSE RESOLUTIONS OF INQUIRY
Under the rules and precedents of the House of
Representatives, a resolution of inquiry is one of the methods
that the House can use to obtain information from the Executive
Branch.\1\ It ``is a simple resolution making a direct request
or demand of the President or the head of an executive
department to furnish the House of Representatives with
specific factual information in the possession of the executive
branch.''\2\ The typical practice has been to use the verbs
``request'' when asking for information from the President and
``direct'' when addressing executive department heads.\3\
Clause 7 of Rule XIII of the Rules of the House of
Representatives provides that if the Committee to which the
resolution is referred does not act on it within 14 legislative
days, a privileged motion to discharge the resolution from the
Committee is in order on the House Floor.
---------------------------------------------------------------------------
\1\Christopher Davis, House Resolutions of Inquiry, CRS Report,
November 25, 2008, at 1 (quoting U.S. Congress, House, Deschler's
Precedents of the United States House of Representatives, H. Doc. 94-
661, 94th Cong., 2nd Sess., vol. 7, ch. 24, Sec. 8.
\2\Id.
\3\Id.
---------------------------------------------------------------------------
PURPOSE OF H. RES. 537
Following a recent fact-finding trip to Afghanistan,
Congressman Mike Rogers claimed that the Obama Administration
has instituted a new policy of having FBI agents provide
Miranda rights to detainees captured and held at U.S. detention
facilities.\4\ According to Congressman Rogers, this alleged
policy change is creating chaos among CIA, FBI, and military
personnel, and is raising concerns about soldiers' ability to
pursue intelligence in the field.\5\ Congressman Rogers
introduced H. Res. 537 to request the President and direct the
Attorney General to produce documents pertaining to the alleged
policy change.
---------------------------------------------------------------------------
\4\Stephen Hayes, ``Miranda Rights for Terrorists,'' Weekly
Standard, June 10, 2009, available at http://www.weeklystandard.com/
weblogs/TWSFP/2009/06/miranda_rights_for_terrorists. asp.
\5\``U.S. Lawmaker Says Obama Administration Ordered FBI to Read
Rights to Detainees,'' FoxNews.com, June 11, 2009.
---------------------------------------------------------------------------
THE JUSTICE DEPARTMENT CONFIRMS THERE WAS NO POLICY CHANGE
According to the Justice Department, there have been no
changes to the policy regarding when to Mirandize terrorist
suspects abroad. Justice Department spokesman Dean Boyd stated
on June 11 that ``[t]here has been no policy change nor blanket
instruction for FBI agents to Mirandize detainees overseas,''
adding ``[w]hile 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.''\6\
---------------------------------------------------------------------------
\6\Id. In addition, on June 23, 2009, Assistant Attorney General
for Legislative Affairs Ron Weich stated in a telephone call to
Democratic and Republican Committee staff that there has been no policy
change. He noted that the Department has for years had a practice of
Mirandizing terrorist suspects only on a case-by-case basis when an
assessment has been made that there is a possibility of prosecution in
an Article III court, in order to enhance national security. In those
cases, he explained, administering Miranda warnings strengthens the
prosecution. Regarding the documents that H. Res. 537 seeks to acquire,
Mr. Weich said that the Department has performed a review to determine
whether there are any documents that evidence a new policy regarding
Miranda warnings for terrorist suspects abroad, and he explained that
they found nothing, since there is no such policy. In addition, he said
the only documents that would be responsive to the resolution are
individual case files on terrorist suspects, which may contain
information regarding whether Miranda warnings were given during
particular interrogations. According to Mr. Weich, these files have
sensitive national security information, and their disclosure would
also jeopardize the cases themselves.
---------------------------------------------------------------------------
THE FBI CONFIRMS THERE WAS NO POLICY CHANGE
In a June 12 letter to Congressman Frank Wolf, FBI Director
Robert Mueller confirmed that ``there has been no policy change
and no blanket instruction issued for FBI agents to Mirandize
detainees overseas.''\7\ Director Mueller further explained
that ``FBI agents have been trained to analyze whether Miranda
is appropriate to use on a case-by-case basis and to consider
providing Miranda warnings if prosecution in the United States
may occur.''\8\ The Director noted that FBI agents have
occasionally given Miranda warnings to persons captured
overseas, at Bagram and elsewhere, but only when ``a
determination was made that a prosecution in an Article III
court may be in the interest of national security and that
providing Miranda warnings . . . was . . . desirable to
maximize the likelihood that any resulting statements would be
admissible at trial.''\9\ In order to place the issue in its
proper context, the Director explained that Miranda warnings
have been provided to Bagram detainees only in a small number
of cases out of over 4,000 individuals whom the FBI has been
involved in detaining and interrogating.\10\
---------------------------------------------------------------------------
\7\Letter from FBI Director Robert S. Mueller, III to Congressman
Frank Wolf, June 12, 2009. A copy of the letter was also sent to
Congressman Rogers, and was made part of the record during the
Committee's June 24, 2009 meeting to consider the resolution.
\8\Id.
\9\Id.
\10\Id. In the same letter, Director Mueller also described the so-
called ``Global Justice'' proposal, which seeks ``to have a process
that ensures all available intelligence from the intelligence community
is consolidated for decision makers so that they have the best
available information when determining the strategy for handling
certain terrorists overseas.'' He further noted that the proposal
``would also ensure . . . that intelligence is gathered in a manner
that best preserves future options vis-a-vis the individual terrorist
at issue, including gathering evidence in a manner that ensures its
integrity. . . .'' Importantly, Director Mueller explained that ``[f]ar
from a policy change, the proposal would focus on the best way to
manage and deploy interagency teams overseas, train the teams, and
provide them forensic support. The proposal has never had any
connection to changes in FBI policy on when Miranda warning[s] should
be administered to detainees overseas.''
---------------------------------------------------------------------------
When recently asked about the FBI's occasional provision of
Miranda warnings, General David Petraeus, who supervises
Afghanistan military operations as the head of U.S. Central
Command, made clear that this does not create any problems for
the military. He explained that ``[t]his is the FBI doing what
the FBI does. . . . These are cases where they are looking at
potential criminal charges. Were comfortable with this.''\11\
---------------------------------------------------------------------------
\11\See ``Petraeus on Miranda Rights at Bagram,'' available at
http://www.prospect.org/csnc/blogs/
tapped_archive?month=06&year=2009&base_name=petreaus_on_miranda_rights_a
t&2.
---------------------------------------------------------------------------
THE PRACTICE OF MIRANDIZING TERRORIST SUSPECTS OCCURRED DURING THE
PREVIOUS ADMINISTRATION
The practice of sometimes administering Miranda warnings to
terrorist suspects is not unique to the Obama
Administration.\12\ Director Mueller's letter states that the
practice has been occurring ``[f]or years.''\13\ Indeed, when
the Bush Administration announced in early 2008 that it
intended to bring capital murder charges against six men
allegedly linked to the 9/11 terrorist attacks, it did so based
partly on information that the men disclosed to FBI questioners
without the use of coercive interrogation tactics and after
having been read rights similar to a standard U.S. Miranda
warning, while they were detained at Guantanamo Bay.\14\ The
Obama Administration has also confirmed that Bush
Administration officials administered Miranda warnings to
suspects overseas in some instances.\15\
---------------------------------------------------------------------------
\12\Josh White, Dan Eggen and Joby Warrick, ``U.S. to Try 6 On
Capital Charges Over 9/11 Attacks: New Evidence Gained Without Coercive
Tactics,'' Wash. Post, February 12, 2008, A1.
\13\Letter from FBI Director Robert S. Mueller, III, to Congressman
Frank Wolf, June 12, 2009.
\14\Id.
\15\See ``Obama Administration Says Some Detainees Overseas Are
Being Mirandized--
and Bush Did It, Too,'' ABC News, June 11, 2009, available at http://
blogs.abc
news.com/politicalpunch/2009/06/obama-administration-says-some-
detainees-overseas-are-being-mirandized.html.
---------------------------------------------------------------------------
Hearings
No hearings were held in the Committee on H. Res. 537.
Committee Consideration
On June 24, 2009, the Committee met in open session and
ordered H. Res. 537 adversely reported, without amendment, by a
rollcall vote of 13 yeas to 12 nays, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall vote occurred during the Committee's
consideration of H. Res. 537:
H. Res. 537 was ordered reported unfavorably by a vote of
13 to 12.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Pierluisi...................................................
Mr. Quigley..................................................... X
Mr. Gutierrez................................................... X
Mr. Sherman.....................................................
Ms. Baldwin.....................................................
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Rooney......................................................
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 13 12
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the Committee estimates that
implementing the resolution would not result in any significant
costs. The Congressional Budget Office did not provide a cost
estimate for the resolution.
Performance Goals and Objectives
Clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives is inapplicable, because H. Res. 537 does not
authorize funding.
Constitutional Authority Statement
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives is inapplicable, because H. Res. 537 is not a
bill or a joint resolution that may be enacted into law.
Advisory on Earmarks
Clause 9 of rule XXI of the Rules of the House of
Representatives is inapplicable, because H. Res. 537 is not a
bill or joint resolution.
Section-by-Section Analysis
H. Res. 537 requests the President, and directs the
Attorney General, to transmit to the House of Representatives
not later than 14 days after the date of adoption of the
resolution, copies of any portions of all documents, records,
and communications in their possession referring or relating to
the notification of rights under Miranda v. Arizona, 384 U.S.
436 (1966), by the Department of Justice, including all
component agencies, to foreign persons, captured in
Afghanistan, who are suspected of terrorism and detainees in
the custody of the Armed Forces of the United States in
Afghanistan.
Minority Views
For the reasons outlined below, we strongly disagree with
the majority's partisan decision to unfavorably report H. Res.
537, a resolution of inquiry seeking information from the
Administration regarding its reported new policy to
increasingly provide Miranda warnings to terrorists detained in
Afghanistan.
Based on recent reports, the Administration has embarked on
a new policy in which increasing numbers of terrorists detained
in Afghanistan are being read Miranda warnings. These warnings,
as developed and required by the Supreme Court,\1\ are given by
law enforcement officers and agents to criminal defendants, and
they generally consist of the following formulation: ``You have
the right to remain silent. Anything you say can and will be
used against you in a court of law. You have the right to an
attorney present during questioning. If you cannot afford an
attorney, one will be appointed for you. Do you understand
these rights?'' Miranda warnings are only given when criminal
prosecution is the goal, but our goal in the war on terrorism
should not be the prosecution of criminals in court. It should
be the defeat of terrorists on the battlefield.
---------------------------------------------------------------------------
\1\See Miranda v. Arizona, 384 U.S. 436 (1966).
---------------------------------------------------------------------------
THE NEED FOR THE RESOLUTION
According to multiple reports, the Administration has
embarked on a new policy in which increasing numbers of
terrorists detained in Afghanistan are being given Miranda
warnings. Such a policy will have grave implications for our
national security because it indicates an approach to the war
on terror in which terrorists will be treated more like
domestic criminal defendants, and less like foreign enemies
with a military and political agenda against the United States
as a nation. Because such a policy shift would have dramatic
effects on America's security, the House should immediately
take up House Resolution 537.
This resolution of inquiry requests that the Administration
provide all documents and communications relating to this
reported new policy to the House of Representatives so it can
fulfill its constitutional duty to oversee and formulate
America's national security policies.
During the campaign, President Obama made clear he
preferred having prosecutors deal with terrorists like ordinary
criminals to having our military deal with them for what they
are: sworn enemies engaged in a war against all Americans.
During an interview with ABC News, Obama said ``And, you know,
let's take the example of Guantanamo. What we know is that, in
previous terrorist attacks--for example, the first attack
against the World Trade Center, we were able to arrest those
responsible, put them on trial. They are currently in U.S.
prisons, incapacitated.''\2\
---------------------------------------------------------------------------
\2\``Transcript: Jake Tapper Interviews Barack Obama,'' ABC News
(June 16, 2008).
---------------------------------------------------------------------------
However, the bipartisan 9/11 Commission firmly and
unanimously rejected that approach, stating in its report that
``The law enforcement process is concerned with proving the
guilt of persons apprehended and charged . . . It was not
designed to ask if the events might be harbingers of worse to
come.''\3\ Indeed, the criminal-prosecution approach employed
prior to 9/11 was an abject failure. During the eight years
prior to 9/11, even with the highest conceivable conviction
rate of 100 percent, fewer than three dozen terrorists were
neutralized through successful prosecution.\4\ Even worse,
trials in the criminal justice system inevitably caused more
terrorism by increasing opportunities for terrorist propaganda,
leaving too many militants in place, and divulging too much
information in court that tipped off other terrorists and
allowed them to evade capture.\5\
---------------------------------------------------------------------------
\3\The 9/11 Commission Report, at 73.
\4\Andrew C. McCarthy and Alykhan Velshi, ``We Need a National
Security Court'' (The American Enterprise Institute 2007) at 6, 9.
Terrorism trials take months to complete, often following many years of
pretrial discovery and court proceedings. Typically, the appeals also
take years to complete. See id. at 6 n.9.
\5\See id.
---------------------------------------------------------------------------
The Obama Administration's first foray back toward the
criminal prosecution approach to terrorism has already resulted
in a sweetheart deal for Ali Saleh Kahlah al-Marri, who
admitted to plotting attacks with cyanide gas at U.S. dams,
waterways, and tunnels.\6\ That hard-core terrorist, who was an
al-Qaeda member since 1998, copped a plea in which he stands to
receive, at most, only 15 years in prison.\7\ As retired
Commander Kirk Lippold points out, that's ``the same sentence
as a person tried for identity theft or fraud.''\8\
---------------------------------------------------------------------------
\6\Carrie Johnson, ``Marri Admits Conspiring with Al-Qaeda
Operatives; Faces Up to 15 Years,'' The Washington Post (May 1, 2009).
\7\Andrew McCarthy, ``Sweetheart Deal for a Terrorist,'' National
Review Online (May 5, 2009).
\8\Carrie Johnson, ``Marri Admits Conspiring with Al-Qaeda
Operatives; Faces Up to 15 Years,'' The Washington Post (May 1, 2009).
---------------------------------------------------------------------------
That maximum 15-year sentence is especially absurd when we
recall that the lowest-level member of ``Blind Sheikh''
Rahman's cell--which bombed the World Trade Center in 1993--
received 25 years in prison.\9\ That low-level terrorist
received a 25-year sentence when he had been recruited by the
cell only at the very end of attack preparations and
transported gasoline to a bomb-construction safehouse.\10\ That
25-year sentence for a low-level terrorist reflects a depth of
resolve against terrorism that the more recent 15-year sentence
against a hard-core terrorist does not.
---------------------------------------------------------------------------
\9\Andrew McCarthy, ``Sweetheart Deal for a Terrorist,'' National
Review Online (May 5, 2009).
\10\Andrew McCarthy, ``Sweetheart Deal for a Terrorist,'' National
Review Online (May 5, 2009).
---------------------------------------------------------------------------
More recently, the Attorney General announced in May that
the Justice Department would be prosecuting known terrorist
Ahmed Ghailani in federal court.\11\ That prosecution is based
on a March 12, 2001, indictment for terrorism conducted prior
to 9/11.\12\ Since then, Ghailani roamed free and served al-
Qaeda as a document forger, trainer at a terrorist camp, and
bodyguard for Osama bin Laden until he was captured by the U.S.
military in July, 2004.\13\ The Ghailani prosecution is an
exercise in looking backward, not forward. But only by looking
forward can we prevent the next attack.
---------------------------------------------------------------------------
\11\http://www.usdoj.gov/opa/pr/2009/May/09-nsd-494.html.
\12\http://www.usdoj.gov/opa/pr/2009/May/09-nsd-494.html.
\13\Charles D. Stimson, ``First--and Perhaps Last--Gitmo Inmate
Brought to America,'' The Heritage Foundation (June 13, 2009),
available at http://www.heritage.org/Press/Commentary/ed061209c.cfm.
---------------------------------------------------------------------------
We're all familiar with the Miranda warnings from numerous
television shows. Miranda warnings, spelling out the
constitutional rights to which Americans are entitled, are only
given when criminal prosecution is the goal. Our goal in the
war on terrorism should not be the prosecution of criminals in
court, but rather it should be the defeat of terrorists on the
battlefield far from America. Now comes word that the Obama
Administration is increasingly providing Miranda warnings to
captured terrorists, a clear indication it's intending to
pursue more civil justice in the courtroom against America's
enemies, and less military justice in the war on terror.
Before President Obama assumed office, the U.S. already
granted enemy combatants more procedural rights than had ever
been granted before by any nation in the history of the world.
Now President Obama wants to extend to known terrorists the
full gamut of constitutional rights afforded criminal
defendants on trial in the U.S.
President Obama's own Solicitor General, Elena Kagan, filed
a legal brief opposing a court's authority to order foreign
terrorists released in this country.\14\ In it, she repeatedly
recognizes ``the critical distinction'' the Supreme Court has
drawn ``between an alien who has effected an entry into the
United States and one who has never entered.''\15\ Indeed,
Solicitor General Kagan cautioned the Supreme Court not to
``blur the previously clear distinction between aliens outside
the United States and aliens inside this country or at its
borders.''\16\ ``This basic distinction,'' she continued,
``serves as the framework on which our immigration laws are
structured, and repeatedly has been recognized as significant
not just under the Constitution but also as a matter of
statutory and treaty law.''\17\ By bringing more terrorists
onto U.S. soil, even for purposes of prosecuting them, the
President risks granting them even more constitutional rights,
by his Solicitor General's own admission.
---------------------------------------------------------------------------
\14\See Andrew McCarthy, ``Justice Denies the Uighers . . . For
Now,'' National Review (June 2, 2009).
\15\Id.
\16\Id.
\17\Id.
---------------------------------------------------------------------------
That the Administration may be planning on bringing more
terrorists to the U.S. was indicated to Rep. Mike Rogers of
Michigan.\18\ Rep. Rogers is a former special agent of the
Federal Bureau of Investigation and U.S. Army officer and now a
senior Republican on the House Permanent Select Committee on
Intelligence. He recently traveled to Afghanistan on a fact-
finding trip, and what he heard from officials there startled
him. He said he was told there that ``The administration has
decided to change the focus to law enforcement . . . You have
foreign fighters who are targeting U.S. troops today--foreign
fighters who go to another country to kill Americans. We
capture them . . . and [we]'re reading them their rights--
Mirandizing these foreign fighters.''\19\ And once terrorists
are given the right to remain silent, of course, they do just
that. The result is no interrogations, no information, and more
attacks.
---------------------------------------------------------------------------
\18\``Resolution: Are Terrorist Suspects Mirandized?'' Office of
Rep. Mike Rogers (R-MI) (June 12, 2009).
\19\See Stephen F. Hayes, ``Miranda Rights for Terrorists,'' Weekly
Standard Blog (June 10, 2009), available at http://
www.weeklystandard.com/weblogs/TWSFP/2009/06/miranda_rights_
for_terrorists.asp.
---------------------------------------------------------------------------
Just ask 9/11 mastermind Khalid Sheikh Mohammad. When he
was captured in 2003, he was not cooperative. According to
President Clinton's CIA Director, George Tenet, he said ``I'll
talk to you guys after I get to New York and see my
lawyer.''\20\ But no one read him any Miranda rights, and
instead his interrogation went forward, whether or not he
wanted it to. As a result, Director Tenet said the information
we obtained from him saved lives and helped defeat al-
Qaeda.\21\ President Obama's Director of National Intelligence,
Admiral Dennis Blair, confirmed these facts recently when he
wrote in an April 16, 2009, unclassified internal memo to
employees of the Central Intelligence Agency that ``High value
information came from interrogations in which those [enhanced
interrogation] methods were used and provided a deeper
understanding of the al Qa'ida organization that was attacking
this country.''
---------------------------------------------------------------------------
\20\Id.
\21\Id.
---------------------------------------------------------------------------
As Director Tenet wrote in his memoirs, ``I believe none of
these successes would have happened if we had had to treat
[this terrorist] like a white-collar criminal--read him his
Miranda rights and get him a lawyer who surely would have
insisted that his client simply shut up.''\22\
---------------------------------------------------------------------------
\22\Id.
---------------------------------------------------------------------------
The Justice Department claims that there has been no recent
change in overall policy, but several of the individuals
responsible for conducting the interrogations of detainees told
Rep. Rogers that a ``change of policy'' is exactly what has
occurred.\23\
---------------------------------------------------------------------------
\23\See Stephen Hayes, ``You Have the Right to Remain Silent . .
.'' The Weekly Standard (June 22, 2009).
---------------------------------------------------------------------------
We are aware of one situation in which the previous
Administration gave Miranda warnings to a high-level detainee,
but those warnings were given under unique circumstances in
which a female detainee who is married to Khalid Sheikh
Mohammad's nephew was waiting to be interrogated by FBI
officials in Afghanistan, and then she grabbed the rifle of an
army warrant officer and attempted to shoot and kill her
captors. It was after this crime that she was read her Miranda
rights. She was not read her rights after her initial
detention, but only after she committed the subsequent crime of
attempted murder at a U.S. detention facility.\24\
---------------------------------------------------------------------------
\24\See Stephen Hayes, ``Obama Justice Department Hoes Silent on
Miranda,'' Weekly Standard Blog (June 12, 2009).
---------------------------------------------------------------------------
Apparently, the increased use of Miranda warnings for
terrorists by the Obama Administration is in fact part of a new
policy the Los Angeles Times described in May. According to
that report, ``The FBI and Justice Department plan to
significantly expand their role in global counter-terrorism
operations, part of a U.S. policy shift that will replace a
CIA-dominated system of clandestine detentions and
interrogations with one built around transparent investigations
and prosecutions. Under the `global justice' initiative, which
has been in the works for several months, FBI agents will have
a central role in overseas counter-terrorism cases [and] expand
their questioning of suspects. . . .''\25\
---------------------------------------------------------------------------
\25\Josh Meyer, ``FBI Planning a Bigger Role in Terrorism Fight,''
The Los Angeles Times (May 28, 2009).
---------------------------------------------------------------------------
The reports that detainees are increasingly being told of a
right to remain silent is disturbing not only for its policy
implications, but also because it appears to violate one of
President Obama's own policy statements. In a ``60 Minutes''
interview aired in March, Obama said ``Now, do these
[detainees] deserve Miranda rights? Do they deserve to be
treated like a shoplifter down the block? Of course not.''\26\
---------------------------------------------------------------------------
\26\See video clip here: http://www.realclearpolitics.com/video/
2009/06/10/flashback_obama_
says_detainees_dont_deserve_miranda_rights.html.
---------------------------------------------------------------------------
Even Attorney General Eric Holder once recognized the need
to be able to detain and interrogate terrorists outside the
normal process of criminal prosecution, going so far as to say
that terrorists are not even entitled to prisoner-of-war
protections under the Geneva Conventions. In an interview on
CNN in January 2002, Mr. Holder said, rightly in our view,
that:
One of the things we clearly want to do with these
prisoners is to have an ability to interrogate them and
find out what their future plans might be, where other
cells are located; under the Geneva Convention you are
really limited in the amount of information that you
can elicit from people . . . If, for instance, Mohamed
Atta had survived the attack on the World Trade Center,
would we now be calling him a prisoner of war? I think
not.\27\
---------------------------------------------------------------------------
\27\See ``2002 Video Flashback--Eric Holder: Terrorist Detainees
Don't Fall Under Geneva Conventions,'' available at http://
newsbusters.org/blogs/kerry-picket (also featuring video of Holder
interview).
It now appears, however, that the President and the
Attorney General may be going well beyond considering
terrorists captured on the battlefield prisoners of war by
contemplating their detention in U.S. prisons as criminal
defendants. With any increased reliance on criminal trials in
the war on terror comes the detention of more terrorists in
U.S. prisons and jails. Even Robert Mueller, the Director of
the FBI, is concerned about that prospect. As the Associated
Press reported, when one member of this committee ``prodded
Mueller to agree that [terrorists] could be safely kept in
maximum security prisons in the United States . . . Mueller
balked at [the] suggestion, noting that in some instances
imprisoned gang leaders have run their operations from inside
prisons.''\28\
---------------------------------------------------------------------------
\28\``FBI Director Concerned About Gitmo Releases,'' The Associated
Press (May 21, 2009).
---------------------------------------------------------------------------
The Senate Majority Leader, Harry Reid, has echoed Director
Mueller's concerns. When asked whether he believed prisoners
should ever be transferred into an American prison, he said,
``Not in the United States.''\29\
---------------------------------------------------------------------------
\29\Emily Pierce, ``Reid Says Gitmo Prisoners Will Not Be
Transferred to U.S.,'' Roll Call (May 19, 2009).
---------------------------------------------------------------------------
We must assure the American people that the United States
is not starting to treat sworn foreign enemies of America who
are waging a war against us as common criminals who are due to
be informed of their Miranda rights. And the only way to do
that is to support this resolution of inquiry so that Congress
can review and evaluate the Administration's approach to how to
treat our enemies and have a debate over that approach and
change it if warranted. Our constitutional obligations require
nothing less.
This resolution simply requests that the Administration
produce to the House of Representatives documents and
communications regarding any policy of notification of Miranda
rights by the Department of Justice to both foreign persons
captured in Afghanistan who are suspected of terrorism and to
detainees in the custody of U.S. armed forces in Afghanistan.
Securing the production of these documents is the least we can
do to provide both the transparency the Obama Administration
claims to support and the information the American people and
their elected representatives deserve.
Lamar Smith.
F. James Sensenbrenner, Jr.
Howard Coble.
Elton Gallegly.
Bob Goodlatte.
Daniel E. Lungren.
Darrell E. Issa.
J. Randy Forbes.
Steve King.
Trent Franks.
Louie Gohmert.
Jim Jordan.
Ted Poe.
Jason Chaffetz.
Tom Rooney.
Gregg Harper.
