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Pakistani “Cooperation” on Faisal Shahzad

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Mark Hosenball has a post elaborating on something reported elsewhere–that the High Value Detainee Interrogation Group (HIG) is only marginally involved in Faisal Shahzad’s interrogation. Given a point I tried to make here–namely, that one of the first things that happened after Shahzad’s arrest and seemingly in conjunction with him waiving a number of his rights, Pakistan detained at least one of his friends and his father-in-law (and potentially his father)–I’m particularly interested in how Hosenball describes Pakistan’s “cooperation” on this case.

Two of the officials also said that the HIG is playing little to no role in the questioning of multiple presumed associates of Shahzad who were detained by authorities in Pakistan following the failed Times Square attack. The main reason that HIG personnel are not more involved in questioning potential witnesses and suspects picked up in Pakistan, the officials said, is because Pakistani authorities have declined to invite HIG personnel into their country to participate in the interrogations.

[snip]

Another of the officials said that in any case, given the fact that Shahzad began cooperating with U.S. authorities literally minutes after Homeland Security officers took him off a flight from New York’s JFK Airport to Dubai on May 3, the need for ultrasophisticated interrogation expertise, like the kind of expertise HIG is supposed to offer, is not necessarily warranted in Shahzad’s case. As for witnesses or suspects picked up in Pakistan in connection with the Shahzad investigation, the official said, Pakistani authorities are doing most of the questioning themselves, though both Pakistani and U.S. officials say that the two governments are generously sharing information with each other.

Now, Hosenball places HIG’s non-involvement in the Pakistani interrogations (if that’s what they are) in this case within the context of earlier Pakistani disinterest in inviting HIG to the country. But look at a few of these details:

May 3, just before midnight: Shahzad arrested

May 4: US Ambassador Anne Patterson asks for Pakistani cooperation in case

May 5: Shahzad’s friend and father-in-law detained; police guard father’s house

May 6: Shahzad’s father in protective custody

May 7: In interview taped for May 9 60 Minutes, Hillary Clinton warns of “severe consequences … [if] an attack like this that we can trace back to Pakistan were to have been successful”

May 9: FBI seeks access to Shahzad’s father, retired Air Vice Marshall Baharul Haq

The appearance from this timeline is that, at a time when public reports said Shahzad was claiming, implausibly, that he acted alone, Pakistan rounded up Shahzad’s family members and a friend (though they appear to have described the detention of Shahzad’s father differently from how they described the detention of Shahzad’s father-in-law). Pakistan appears to have done this in response to a request from Ambassador Patterson. So Pakistan was certainly cooperative with the US, to the extent that it detained family members with no clear ties to the attempted attack.

Which is why the FBI request to have direct access to Shahzad’s father is so interesting–and Clinton’s oblique threat about ties between Pakistan and attacks like this. The appearance–and again, this is just appearances–is that the US is intent on getting access one way or another to Baharul Haq, regardless of whether or not HIG gets that access.

Mind you, there are no conclusions to draw from all this. But it seems that the issue with Pakistan may not just be a dislike of HIG.

Faisal Shahzad’s “Waiver” of His Rights

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Faisal Shahzad was arrested just before midnight on May 3.

On May 5, the Pakistani newspaper Dawn reported that one of Shahzad’s friends and his father-in-law, Iftikhar Mian (elsewhere named as Mohammad Asif Mian), had been detained by Pakistani intelligence. The same report describes a meeting that took place on May 4, at which Pakistani authorities promised US Ambassador Anne Patterson full cooperation with the investigation. Also on May 5, the AP took a photograph (published in a May 6 Time article) showing a policeman apparently standing guard in front of Shahzad’s father’s house. Later the same day, less than 48 hours after Shahzad’s arrest CBS reported (apparently for a second time, given the title and the picture referring to an arraignment expected but postponed the day before) that Shahzad’s arraignment had been delayed. On May 6, a blog reported that Faisal’s father, retired air force officer Baharul Haq, was taken into “protective custody” by Pakistani officials.

On May 9, Dawn reported that the FBI was seeking access to Shahzad’s father.

On May 11, Dianne Feinstein confirmed that Shahzad had waived his right to speedy arraignment.

On May 14, Pakistan’s Interior Minister stated that there had been no formal arrests in Pakistan related to the Shahzad case.

In all of this reporting, there has been no solid reporting as to the status or location of Shahzad’s wife, American citizen Huma Mian, or his kids, at least one of whom is also US-born (though some reports had her staying at Shahzad’s father’s house).

I raise all this to point out that at a time when it still wasn’t clear whether or not Shahzad would “waive” his rights to appear in court and–apparently–have a lawyer, Pakistani authorities had already detained at least Shahzad’s friend and father-in-law, potentially his father, and might well have police guard on the house at which his wife remained (though, as I pointed out, we have no real clarity as to Huma Mian’s location). All of this presumably occurred in response to the US request for help on May 4, just hours after Shahzad was arrested. And, in that same period of time, Shahzad rather curiously waived not just his right to an arraignment, but possibly also his right to an attorney.

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Does the Right to a Lawyer Disappear with Miranda?

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Charlie Savage has a story explaining what the Administration means when it says it wants to “modernize” Miranda warnings. As he explains, it’s not just or even primarily Miranda warnings that are the problem (according to the Administration), but rather the requirement that a person arrested without a warrant be brought to court promptly.

President Obama’s legal advisers are considering asking Congress to allow the government to detain terrorism suspects longer after their arrests before presenting them to a judge for an initial hearing, according to administration officials familiar with the discussions.

If approved, the idea to delay hearings would be attached to broader legislation to allow interrogators to withhold Miranda warnings from terrorism suspects for lengthy periods, as Attorney General Eric H. Holder Jr. proposed last week.

The goal of both measures would be to open a window of time after an arrest in which interrogators could question a terrorism suspect without an interruption that might cause the prisoner to stop talking.

But there are two things missing from Savage’s article (and I don’t think it’s through any fault of his). First, an explanation of what the problem is.

I mean, even the Republicans haven’t been complaining about alleged terrorists appearing in court less than 48 hours after they were captured. And there are no allegations that–say–Najibullah Zazi or Umar Farouk Abdulmutallab stopped talking because they got trotted out before a judge shortly after they were captured. And as far as Faisal Shahzad? As Savage points out, he reportedly waived his right to arraignment.

Officials have said that Mr. Shahzad waived those rights, as well as his right to a quick initial hearing before a judge, and has continued cooperating with interrogators. But, worried that suspects in future cases may not do likewise, or that law enforcement officials will be confused about the rules, the administration has decided to push for changes.

In other words, Shahzad is–like the other recent terrorist suspects mentioned–evidence that this may not be necessary! (Note, reporters took notice of the delay in Shahzad’s arraignment–see here and here, for example.)

Then there’s the second thing missing from this discussion. Is anyone wondering where the discussion of the right to an attorney is? Who is Shahzad’s attorney?

The way it works, bmaz tells me, is you’re arrested and you’re brought before the judge (either to be charged or arraigned) and if you don’t have a lawyer, the judge makes sure you have one.

And as of right now, PACER doesn’t list an attorney for Shahzad.

Let’s return to the Miranda warning again:

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. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?

So I’m curious: the Administration wants to “modernize” Miranda. They want to postpone bringing alleged terrorists before a Court (though it’s not clear why). Are they, by delaying court appearances, trying to at the same time delay the time when alleged terrorists get assigned lawyers? Are they trying to dissuade alleged terrorists from having lawyers?

One final thing. The big example where–if you ask terrorism prosecutors–the requirements of due process have  been a problem, of late, was the Hutaree defendants. After getting public defenders, their lawyers challenged their detention without bail (which is under appeal). This big push to deprive alleged terrorists of due process–will it apply to domestic terrorists, with whom they’ve had such problems recently?

What’s It Take for Holder to Be Allowed to Do a Sunday Show? Kill Miranda!

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The White House press made a bit of a todo over the fact that Eric Holder was finally allowed to go on a Sunday show today (he’s appearing on both ABC and NBC). Given all the somewhat bizarre claims from people like Rahm that Holder botches his public statements, it sort of makes you wonder what he’d have to agree to before he’d be allowed out without a minder.

The answer?

Kill Miranda!

Even in his appearance on ABC, Holder makes a case that Miranda has not impeded any investigation to date:

The system has proven to be effective. …. people have been given Miranda warnings, people have continued to talk, as was the case [with Faisal Shahzad], as was the case with Abdulmutallab in Detroit.

And Holder has made even more passionate defenses of Miranda in the past, notably in Congressional testimony (see some quotes from such testimony here). Nevertheless, Holder effectively uses his Sunday show debut to say, “If it ain’t broke, but fearmongers like Joe Lieberman and Lindsey Graham want to attack it nevertheless, then hell! Let’s break it!”

But gosh. It sure is nice to see the last defender of rule of law allowed to appear on the Sunday shows!

“It’d be easier to launch a Hellfire missile at a non-citizen than a citizen”

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The whole point of Joe Lieberman’s tea-bagger bait Terrorist Expatriation Act, according to his Republican House co-sponsor Charlie Dent, is to make it easier to launch Hellfire missiles at people. And Lieberman, too, ties his citizenship-stripping measure to Obama’s targeting of an American citizen with a predator drone.

Taking on critics who say his proposal goes too far, Lieberman pointed to news reports that President Barack Obama signed an order enabling the US military to kill US citizens like radical US-Yemeni cleric Anwar al-Awlaki.

“If the president can authorize the killing of a United States citizen because he is fighting for a foreign terrorist organization,” he said, “we can also have a law that allows the US government to revoke Awlaki’s citizenship.”

Lieberman said his proposal would make it harder for US nationals who cast their lot in with extremists, and train overseas, to return and carry out an attack, and if they do would make it possible to try them in military court.

“They will not enjoy the rights and privileges of American citizenship in the legal proceedings against them. That, I believe, will make America safer,” he said at a press conference with three other lawmakers.

“The US military may have more options to use necessary force to neutralize the threat, such as Anwar al-Awlaki, without the concerns associated with targeting an American citizen,” said Republican Representative Charlie Dent.

“I suspect it’d be easier to launch a Hellfire missile at a non-citizen than a citizen,” said Dent, referring to a weapon sometimes fired from US aerial drones at suspected terrorists.

Now, there’s a lot to loathe about this bill. Shane Kadidal describes the many ways in which it is illegal here.

But what I find most astounding about it is that Lieberman ties this not to actual military preparations against the United States (as he claims in his comments to Andrea Mitchell) but simply to “providing material support or resources to a foreign terrorist organization.” And while I’d be willing to consider the merits of deporting Congressman Peter King or former top Chiquita executives like Carl Lindner and Roderick Hills (though following the logic of Elena Kagan, we’d also have to deport Attorney General Holder), I’m also cognizant that the way the government currently uses material support charges, it is prone to ensnare people who donate socks or money, sometimes in the name of charity.

The logical endpoint of this, then, in the addled little brains of Joe Lieberman and Charlie Dent, is that we should consider drone strikes on brown people who might have a good faith belief that they’re engaging in charity. And not just that we should consider drone strikes, but we should try to make it easier to execute those drone strikes.

“Pattern of Life” Drone Strikes

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The LAT reports that targeting for most of the drone strikes that have killed more than 500 people in Afghanistan and Pakistan has been based not on information about an individual’s ties to terrorism, but rather on “pattern of life” analysis that targets the actions of a person.

The CIA received secret permission to attack a wider range of targets, including suspected militants whose names are not known, as part of a dramatic expansion of its campaign of drone strikes in Pakistan’s border region, according to current and former counter-terrorism officials.

The expanded authority, approved two years ago by the Bush administration and continued by President Obama, permits the agency to rely on what officials describe as “pattern of life” analysis, using evidence collected by surveillance cameras on the unmanned aircraft and from other sources about individuals and locations.

Think about that: we’re potentially killing people based not on what we know about an individual, but what we have observed solely through the camera of a drone. Or, if we’ve got particularized information from someone on the grounds, it’s as likely to be someone from Blackwater or an even more disreputable contractor posing as PsyOp warriors. And this includes strikes in Pakistan, a country with which we are not at war, supposedly. And among those targeted in such a manner may be associates of Faisal Shahzad.

Remember that old Bush ditty, that we were fighting them over here so we didn’t have to fight them here? Apparently that has now been turned on its head: we are targeting them from here which may make it more likely we’ll be fighting them here.