I am going to break with the conventional wisdom – The underwear bomber should have been mirandized
I don’t particularly like coming to this conclusion but –
1. The crimes that Abdulmutallab is charged with are civil not military violations.
2. He committed his acts in American airspace and was arrested at a US airport.
3. He wasn’t actually engaged in combat so the unlawful combatant tag doesn’t fit.
It’s a shame and I wish I could come to another conclusion but if we are really a nation of laws and not men then in my opinion Abdulmutallab is entitled to the protections our justice system has to offer. If either item 1 or 2 were changed I would say throw him in Gitmo or Bagram and have at him.
-Update- My point here was that we as a people have allowed the rules to be set in such a way that I don’t really see any other way that the FBI(?) could have handled the initial interrogation. I don’t think that Abdulmutallab should be accorded these rights as a matter of principle. It’s a matter of the way I understand the law. I don’t like it, but if we allow our politicians to adopt stupid laws then we as a people have to live with the results.
-update 2- Getting as bad as Glenn Greenwald here but… In this morning’s Washington Post Michael Hayden makes the point I was aiming for in a much better fashion. I didn’t go into enough detail in my initial post, Hayden does.
While I am at it I am going to offer a suggestion on the Khalid Sheikh Muhammad trial. We (and by that I mean the idiots running the country) moved this into the civilian courts, as far as I am concerned we are stuck with that decision now. The constitution doesn’t let you shift jurisdictions just so the government can win. It’s too bad that the two constitutional law professors who are our president and vice-president didn’t understand that and thought they could have their cake and eat it too but ther you are. While we may be stuck with a civilian trial what congress should do is establish a special court that reports directly to the Supreme Court and base it in Gitmo. The FISA court could serve as a precedent. They could also write special rules of evidence and procedure to address the more issues of incriminating statements under duress etc.
That’s the way I would do it. I would also let our allies in Iraq and Afghanistan have representatives present to address their concerns.