There’s a key point in danger of being lost in all the he-said-he-said froth over what Congressional Republicans were told in the hours after the failed Christmas attack: none of the GOP leaders disputes that an Obama aide informed them that suspect Umar Abdulmutallab was being held in FBI custody.
The real dispute is over what flows from that fact. John Brennan, Obama’s national security adviser, said on Meet The Press Sunday that he called four Republicans — Sens. Mitch McConnell and Kit Bond and Reps. John Boehner and Pete Hoekstra — the night of the attempted Christmas attack.
“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?’”
The earliest example we could find of an objection on the Miranda issue from Hoekstra — who has been particularly vocal — was about 20 days after the Brennan call, on Jan. 13.
In response to Brennan’s comments, the four Republicans released statements going after the Administration — Brennan “is clearly trying to shift the focus away from the fact that their bad decisions gave terrorists in Yemen a weeks-long head start” said McConnell’s office. But none of the four is disputing the content of the call.
Meanwhile, Greg Sargent reports that another senator who has been a vocal critic of Obama on the Miranda issue, Susan Collins (R-ME), was also briefed on Christmas, and also didn’t raise the issue.
The key question is whether the Republicans, who have been hammering President Obama in recent weeks over the decision to hold and try Abdulmutallab in the criminal justice system, should have known that the fact that Abdulmutallab was in FBI custody meant that he would have been read his Miranda rights.
(Abdulmutallab was reportedly interrogated by FBI agents for 50 minutes starting after 3:30 p.m. on Christmas. He then went into surgery and was not read his rights until roughly 9 p.m., according to the AP. It’s not clear if the Miranda warning came before or after Brennan’s phone calls.)
So why didn’t any of the the Republicans raise the issue of their concerns on Miranda when Brennan called?
In an e-mail to TPMmuckraker, Boehner spokesman Kevin Smith cites two reasons. “This was a courtesy call, not a consultation or a briefing. Brennan told Boehner the suspect was in custody. That was it. The call lasted for 1-2 minutes. No other substantive information imparted and Brennan did not inform Boehner that the Administration had read Abdulmutallab his Miranda rights,” Smith said, adding that the call was to Boehner’s cell phone, not on a “secure line.”
Smith also pointed to this article in the Washington Post on the new High-Value Detainee Interrogation Group. That is a special unit — not yet operational — which, an administration official told the Post, would have the option of not Mirandizing suspects.
“Regarding Brennan’s claim that ‘in FBI custody’ somehow means Miranda rights have been read, I would note [the] Post story from last year regarding the Administration’s new policy regarding terror arrests,” Smith argues.
Given that the High-Value Detainee Interrogation Group would have the option of giving Miranda rights to suspects, we asked Smither whether Boehner assumed for some reason that Abdulmutallab would not be read his rights. Smith responded: “It was a courtesy call that lasted 1-2 minutes. Brennan imparted no other information than that the suspect was in custody. That was the end of the call.”
Some analysts are having none of these explanations. Spencer Ackerman argues that “these men, who claim leadership on national security, know less about FBI procedure than the average movie-goer.”