By Benjamin Wittes
Friday, May 14, 2010; A17
It is a pincer action against the presidency -- a bipartisan, cross-ideological effort to make it as difficult as possible to handle domestic national security emergencies. In an unfolding terrorism crisis, the political class attacks whatever means any administration uses to neutralize a major terrorist suspect. If the president plays by the rules of law enforcement, we criticize him for endangering America and insist he should have played by the rules of warfare. If, by contrast, he plays by warfare rules, we cry that he has undermined the rule of law and should have stuck with law enforcement norms.
The presidency badly needs more political and legal latitude when authorities capture a suspect in an ongoing plot. And Attorney General Eric Holder is right to seek relief from the pincer.
And whenever it happens, the executive branch faces a no-win situation: If it treats a terrorism suspect as a criminal, a series of rules, statutes and Supreme Court opinions force quick actions that can disrupt critical interrogations. The most famous of these -- the one on which much public debate unfortunately focuses -- is the requirement that authorities read the suspect Miranda rights. This alone is not an especially serious impediment. More significant is the requirement that the suspect appear quickly before a magistrate -- a process that necessarily interrupts discussions and impresses on him the gravity of his situation. If the suspect then stops talking, authorities lose crucial intelligence about other plotters. And because such intelligence is time-sensitive, even if the suspect eventually starts talking again, opportunities may have disappeared.
This intelligence loss is not a hypothetical problem. In important terrorism cases, suspects have sometimes simply pleaded guilty to the charges against them or otherwise refused to plea-bargain -- sacrificing themselves rather than cooperating in exchange for leniency. That is not always what happens. Sometimes, the criminal justice system proves a great vehicle for gathering intelligence, and authorities in the two most recent cases have been both effective and lucky. But there is no way of knowing in those first few hours whether we're going to get lucky.
Therein lies the pressure to look to the military system -- to treat a suspect as an enemy combatant and to try him in a military commission or not at all. In the military system, one can interrogate people for long periods; there is no pressure to read Miranda rights; the suspect has no clear right to a lawyer, even if he requests one; and he doesn't have to be brought before a magistrate. Interrogators get quality time with the suspect -- potentially years of it.
But this system, too, has big costs. The two times the Bush administration used it for domestic captures, it embroiled itself in lengthy legal challenges that threatened to make future use of domestic military detention impossible. The courts were clearly uncomfortable with these long-term, non-criminal detentions, and their discomfort gravely undermined the eventual criminal prosecution of the suspects -- both of whom ended up with lenient sentences for conduct that might otherwise have locked them up for life. Both will be free while they are still relatively young men. If the government uses this system frequently, it may well lose it altogether.
The core of the problem, in short, is that the executive branch lacks the ability in a crisis moment to detain a suspect and interrogate him for intelligence without potentially risking significant interests on the criminal side. The result is that there is very little time in which to conduct the initial interrogation, and the executive sometimes has to make precipitous decisions regarding how to treat suspects.
The attorney general has said that he wants to work with Congress to give authorities more flexibility on Miranda, but what authorities really need is broader: greater flexibility in the rules that govern the first several days of these crisis cases -- rules that give the executive some time and room to maneuver before it has to make fateful decisions. This would require congressional action and judicial tolerance.
It's unclear how much latitude the courts will grant the political branches here. The constitutional law landscape is a minefield. But Holder is right to ask Congress to try. The goal should be to give authorities in emergency terrorism cases a brief period of judicially supervised detention before charges are filed -- with as much as possible of the fruits of lawful interrogation conducted within that detention available for later use in criminal proceedings. Damned if you do, damned if you don't is no way to run the highest-stakes counterterrorism cases.
The writer, a former Post editorial writer, is a senior fellow in governance studies at the Brookings Institution and a member of the Hoover Institution's Task Force on National Security and Law.