November 23, 2011
Courts Test Miranda Rights Limits in Terror Cases
By BENJAMIN WEISER
New York Times
The government’s disclosure of a plot to assassinate the Saudi ambassador to the United States last month came with some reassuring news: the suspect, an Iranian-American, was in custody, had confessed and had provided valuable intelligence on Iran’s role in supporting the plan.
But unlike many confessions, these statements did not come in the hours after the arrest, or in the presence of a lawyer.
The purported cooperation by the defendant, Mansour J. Arbabsiar, occurred during the first 12 days he was in custody after his arrest on Sept. 29; prosecutors said that in the days after his arrest, Mr. Arbabsiar had “knowingly and voluntarily” waived his rights to remain silent, to have a lawyer present during his interrogation and to be quickly taken before a judge.
But Mr. Arbabsiar’s lawyer, Sabrina Shroff, said in a recent interview that she intended to seek a hearing on whether the “consent was freely given, or whether it was unlawfully extracted,” given the gap in time between her client’s arrest and his initial court appearance on Oct. 11.
“There has to be a deep concern about the voluntariness of consent to that long a period of detention,” she said.
Her comments provide an early look at the defense’s legal strategy in a case that has gained widespread attention because of questions over Iran’s alleged role, and because of the wealth of information that prosecutors said they obtained from Mr. Arbabsiar after he waived his Miranda rights.
The early jostling over how Mr. Arbabsiar came to offer his statements represents the latest effort in a tug-of-war, both legal and political, over using the criminal justice system to handle terrorism cases. The debate intensified after the failed attempt to bomb a Detroit-bound airliner on Christmas Day 2009 by the so-called underwear bomber, Umar Farouk Abdulmutallab.
That case highlighted the Obama administration’s claim that it could use a lengthy “public safety” delay in warning a suspect of his rights, without sacrificing the ability to use his statements as evidence. The administration’s position was bolstered in September when a federal judge in Detroit refused to suppress statements made by Mr. Abdulmutallab during the 50 minutes or so in which he was questioned, without having received a Miranda warning, before going into surgery. He has since pleaded guilty.
Yet defense lawyers claim that government interrogators have increasingly stretched the rules governing the rights of criminal defendants in custody, and that Mr. Arbabsiar’s case is an example. The case could also help to clarify another issue: what happens when the government says a terror suspect repeatedly waived his Miranda rights during interrogations that lasted weeks or even months?
The practice has been seen in various forms in other cases, like those of the Pakistani immigrant arrested last year in a failed attempt to set off a bomb in Times Square, and a Somali man questioned for months on a United States naval ship before being brought to Manhattan in July.
In the case of Mr. Arbabsiar, a used-car salesman from Corpus Christi, Tex., prosecutors say he conspired with an Iranian officer to hire assassins from a Mexican drug cartel for $1.5 million to kill the Saudi ambassador to the United States, Adel al-Jubeir. The plot was “directed and approved by elements of the Iranian government,” Attorney General Eric H. Holder Jr. said.
John O. Brennan, the Obama administration’s top counterterrorism adviser, said recently that the Arbabsiar case showed Miranda had not been “an impediment” to eliciting intelligence during an initial interrogation.
Indeed, if the courts eventually uphold the admissibility of Mr. Arbabsiar’s statements, that would further strengthen “the government’s ability to pursue both intelligence and law enforcement goals without sacrificing one or the other,” said Daniel C. Richman, a Columbia law professor and former federal prosecutor.
An defense lawyer experienced in terrorism cases, Joshua L. Dratel, agreed. He said that until a defendant like Mr. Arbabsiar won a suppression motion, “it’s not like the government is worried about pushing the outside of the envelope.”
The interrogation of Mr. Arbabsiar was cited in a sealed, four-page letter that the office of Preet Bharara, the United States attorney in Manhattan, sent to the court on Oct. 6, while questioning was under way. The letter said Mr. Arbabsiar had “without counsel, knowingly and voluntarily waived his Miranda rights and his right to a speedy presentment” each day, and had signed waivers to that effect.
The letter, now public, described how agents were “vigorously and expeditiously pursuing leads relating to the defendant’s statements,” and said “regular access” to Mr. Arbabsiar had allowed them “to promptly verify with him the accuracy of information developed in the investigation.”
The Arbabsiar interrogation resembled that of the would-be Times Square bomber, Faisal Shahzad, who was arrested aboard a plane at Kennedy International Airport.
In a similar letter, prosecutors noted that each day since his arrest, Mr. Shahzad had “knowingly and voluntarily waived his Miranda rights and executed a written waiver of speedy presentment.”
He was being questioned, they said, about “sensitive national security and law enforcement matters,” with the goal of preventing potential future attacks and gathering other “actionable intelligence.”
Mr. Shahzad pleaded guilty soon thereafter, and his statements were not tested in court.
The Miranda issue did reach a judge in the case of a Queens man charged in what the authorities said was a plot by Al Qaeda to detonate a bomb in the New York subway system.
The defendant, Adis Medunjanin, was interviewed over two days in January 2010, waiving his Miranda rights and his right to a speedy court appearance, the office of the United States attorney in Brooklyn, now Loretta E. Lynch, has said in a court filing.
Mr. Medunjanin made it clear “that he desired to cooperate with the government,” the office wrote, “and provided very detailed information about terrorist-related activities by himself and others.”
The defense moved to suppress his statements on the ground that they had been elicited improperly, but Judge Raymond J. Dearie of the United States District Court denied the motion, and the case is pending trial.
A challenge may also arise in the case of the Somali defendant, Ahmed Abdulkadir Warsame. He was apprehended in April and questioned aboard a Navy vessel for about two months without being advised of his Miranda rights, prosecutors have said. Then, after a break of several days, different interrogators, acting in a law enforcement capacity, questioned him for about a week, the government said, adding that he had waived his rights each day.
One of his lawyers, Lee Ginsberg, said a challenge to the voluntary nature of Mr. Warsame’s statements has “been under consideration from the beginning, given the nature of his detention and the process of the questioning.”
The judge in the Arbabsiar case, John F. Keenan, citing the defendant’s “alleged admissions,” suggested in court last month that the defense might file a motion “relating to Miranda.”
“Most certainly, your honor,” replied Mr. Arbabsiar’s lawyer, Ms. Shroff, a federal public defender.
Ms. Shroff’s supervisor, David E. Patton, chief of the federal defenders office, said, “The right to remain silent and the right to counsel are fundamental Constitutional protections meant to guard against government abuse.
“So, of course,” he continued, “we have very serious concerns about government claims that our clients are repeatedly waiving those rights over extended periods of time.”
Mr. Patton, whose office also represented Mr. Shahzad, declined to address the specifics of cases before his office, but he said it was crucial to remain vigilant about protecting rights, especially in terrorism cases where, he contended, “the threat that government agents will cross lines because they perceive it to be necessary is very real.”
Mr. Bharara’s office and the Justice Department declined to comment.
Anthony S. Barkow, a former terrorism prosecutor who runs a center on criminal law at New York University, said a legal challenge by Mr. Arbabsiar would be difficult because of the Miranda waivers he signed every day.
“Unless they can somehow successfully prove some level of coercion,” Mr. Barkow said, “they’re going to lose.”
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