Criminal, Soldier, or Unlawful Combatant? - the `Christmas Bomber' case and the right to silence, and to counsel

Criminal, soldier, or unlawful combatant? That trichotomy frames the current hyperbolic and fear-mongering debate about the “Christmas Day bomber” and his “Miranda rights”.  The attack from the right is that treating  prisoners like Umar Farouk Adbdulmutallab as criminals is being “soft on terror”.  We are “at war” we are often told.

The “we are at war” stance was problematic from the first because the 1949 Geneva Convention III relative to the Treatment of Prisoners of War requires in Article 13 that prisoners of war “must at all times be protected, particularly against acts of violence or intimidation”, and in Article 14 are said to be ‘entitled in all circumstances to respect for their persons and honor”.   


Therefore when the Bush/Cheney administration  formulated its policy they declared that “terrorists” are not prisoners of war but “unlawful combatants” not entitled to review by any court of the United States.   And, impliedly, not entitled to “respect for their persons and honor”.  That stance led to the travesty at the Abu Ghraib prison, international outrage over the conditions of confinement at Guantanamo, and finally, repudiation by the courts of the United States, and renunciation of the policy by the incoming Obama administration.


We are told that treating as a criminal the apparent perpetrator of the failed airplane bomb plot is a sign of weakness, though nearly 200 accused of terrorist acts were so treated in the Bush/Cheney years.  Abdulmutallab, arrested at the Detroit airport, is in jail, facing trial, and in the custody of the FBI presumably received the customary warnings known to everyone who has watched a single episode of Law & Order or NY PD Blue.


The strongest popular appeal is that the accused has been given rights to which he is not entitled - to silence, and to counsel.  The suggestion is that telling Abdulmutallab he had the right to remain silent and to counsel deprived us of information he would otherwise have given.  There is of course no evidence for such a statement.  One can assume that such a commando would expect in the event of capture to be beaten, and to have “hardened” himself for such and event.  

Attorney General Eric Holder has responded in a sharply worded letter to Senate Minority leader Mitch McConnell in which Holder elaborates this point:

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. 

Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system. 

I concur.

Image: Eric Holder at  the  

American Constitution Society