On close scrutiny, this week’s intense debate over Miranda rights for Umar Abdulmutallab — culminating in GOP calls for a top Obama aide to resign — largely falls apart.
The key point of dispute — whether four Republican leaders should have assumed that the Christmas bombing suspect had been Mirandized after a phone call from Obama aide John Brennan, in which the GOPers were told that Abdulmutallab was in FBI custody — is moot in light of the facts of the case.
That call occurred sometime in the evening of Christmas Day after the incident in the skies above Detroit. The Republicans maintained this week, in sniping eagerly picked up by the media, that the phone calls from Brennan were brief and informal, and they had no way of knowing that the suspect was read his rights.
What’s been lost in the debate is that on the afternoon of the very next day, Dec. 26, the Justice Department announced Abdulmutallab had been criminally charged in federal court. At that point, less than 24 hours after the Brennan phone calls, there could be no doubt not only that the suspect was being handled by the criminal justice system, but also that he had been read his rights.
But none of the four Republicans made an issue out of it until at least several days after criminal charges were brought, according to our search of news archives.
Let’s go back and look at what happened in more detail.
The current round of debate started Sunday when Brennan, the deputy national security adviser, said on Meet The Press that he had called Sens. Mitch McConnell and Kit Bond and Reps. John Boehner and Pete Hoekstra the night of the attempted bombing.
“I explained to them that he was in FBI custody, that Mr. Abdulmutallab was, in fact, talking, that he was cooperating at that point. They knew that ‘in FBI custody’ means that there’s a process then you follow as far as Mirandizing and presenting him in front of a magistrate,” Brennan said.
“None of those individuals raised any concerns with me at that point. They didn’t say, ‘Is he going into military custody? Is he going to be Mirandized?’ They were very appreciative of the information, we told them we’d keep them informed, and that’s what we did.”
The four GOPers angrily fired back with different versions of, “but he didn’t mention Miranda specifically!” “At no point did he ever talk to me about legal strategies,” Hoekstra told Politico.
Bond said in a statement, “Brennan never told me any of plans to Mirandize the Christmas Day bomber — if he had, I would have told him the administration was making a mistake.”
Said McConnell’s spokesman: “Senator McConnell was given a heads up that Abdulmutallab was in custody, but little else. He wasn’t told of the decision to Mirandize Abdulmutallab.”
Asked about the matter by TPMmuckraker earlier this week, Boehner spokesman Kevin Smith dismissed “Brennan’s claim that ‘in FBI custody’ somehow means Miranda rights have been read,” pointing to an article about a non-operational interrogation team that would potentially not read suspects their rights.
But whatever side you take in this argument — and given that its standard FBI policy to read Miranda rights to suspects, Brennan seems to have the upper hand on this one — it really only bears on the 20 hours or so after the phone calls on Christmas evening.
That’s because at around 3.p.m. ET the next day, the government announced that criminal charges had been brought against Abdulmutallab. The press release was sent out by the Justice Department. And an FBI agent’s affidavit was attached.
So, that’s when top Republicans fired off their own press releases slamming the decision to bring criminal charges and to — one would have been right to assume — Mirandize the suspect, right?
Not so much.
Lt. Col. David Frakt, a law professor at Western State University who has represented defendants before military commissions at Guantanamo, tells TPMmuckraker that if “FBI custody” wasn’t a tip-off that Abdulmutallab had been Mirandized, the fact that he was criminally charged would remove all doubt.
“If the agents had not advised a person of their rights, which undoubtedly they would, then the judge will,” Frakt says. “The judge will reiterate those rights and typically appoint counsel if it hasn’t already been appointed.”
The DOJ press release noted that Abdulmutallab “will make his initial court appearance later today.” U.S. District Judge Paul D. Borman visited the hospital where the suspect was being treated that day and informed him of the criminal charges.