Under plan, intelligence agencies would be consulted before reading of rights

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By Walter Pincus
Washington Post Staff Writer
Saturday, February 13, 2010

The Justice Department and the FBI will consult with the intelligence community on information about terrorism suspects arrested in the United States before deciding whether to read them their Miranda rights under a plan now under review in the White House, according to senior administration officials.

The proposal follows a controversy over the handling of Umar Farouk Abdulmutallab, who is accused in the attempted Christmas Day bombing and who was read his constitutional rights 10 hours after his arrest. Republicans said the decision cost the Obama administration valuable intelligence.

"We are analyzing lessons learned [in the Detroit Christmas Day case] with the goal of ensuring full information from across the government is available to law enforcement personnel on the ground as they conduct interrogations and make decisions on how to handle terrorist suspects," a senior official said Friday. He requested anonymity because the new procedures, which arise from a review ordered by President Obama, have not yet been approved.

"The final decision about Miranda and other law enforcement decisions will continue to lie with the FBI and Department of Justice," the official added.

Some law enforcement officials have expressed concern that public pressure is pushing the White House to establish new standards based on the Detroit incident, even though the nature of the case might be unique. One senior law enforcement official pointed out that authorities had immediate access to Abdulmutallab's passport and to background information on him that had only recently been entered into the Terrorist Identities Datamart Environment database maintained by the National Counterterrorism Center.

"But what if that person has a false passport and fingerprints are not in our files?" the official said, adding that it takes time just to get an identification, and U.S. law sets tight time rules for when someone who has been arrested must appear before a judge. "How can you have meaningful consultation [within government agencies] when you don't have a good handle on facts and when the clock is ticking?"

Republican lawmakers have criticized the administration for not consulting the heads of U.S. intelligence agencies before FBI agents read the 23-year-old Abdulmutallab his Miranda rights.

The National Security Council did hold a video-conference with representatives of the intelligence agencies, where information was shared, between the time Abdulmutallab stopped talking and his being Mirandized. But the question of his being read his rights was not discussed.

"The leaders of the intelligence community, the director of National Intelligence, the director of the Counterterrorism Center were shocked to hear he had been Mirandized because he had very valuable information," Sen. Christopher S. Bond (R-Mo.), ranking member of the Senate Select Committee on Intelligence, said Thursday on Fox News.

On Friday, told of the changes being contemplated by the White House, Bond said: "While there are a lot of unanswered questions, I hope this is a signal that the White House is now more interested in getting lifesaving information from captured terrorists than getting them a lawyer."

Sen. Jeff Sessions (R-Ala.), ranking member of the Judiciary Committee, said he does not think new administration protocols will solve the problem of the treatment of terrorism suspects. "This attempt to finesse it is not going to fix it," he said. "A captured high-value al-Qaeda member should be immediately placed in military custody and should be immediately interrogated vigorously in a sustained interrogation."

Although Sessions and others have recommended that terrorism suspects arrested on U.S. soil be immediately put into military custody, such an action could take place only if the suspects are found to be enemy combatants.

Law enforcement officials, however, say putting terrorism suspects arrested on U.S. soil immediately into military custody is not as easy as it sounds.

"It's a military decision, and a complicated one when the arrest is in the U.S.," said one government attorney, who was not authorized to speak on the record. A suspect has to be a member of al-Qaeda or linked to a terrorist group associated with al-Qaeda under the legal approach used by the Bush administration, and that has not been tested in court.

Jose Padilla, who was accused of planning a "dirty bomb" attack in 2002, spent years being questioned while in a Navy brig, but he provided no practical intelligence. In the end, the Bush administration charged him in federal court with conspiring to aid terrorist organizations. He was sentenced to 17 years in prison.

Staff writer Carrie Johnson contributed to this report.


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