The Obama-GOP Miranda Showdown: Everything You Think You Know Is Wrong

February 10, 2010 6:12 a.m.

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.

But as far as we can tell from searching news archives, the first time Hoekstra, Bond, Boehner, or McConnell made an issue of the fact that Abdulmutallab was going through the civilian system is a Dec. 30 statement from Hoekstra’s office. That’s four days after Abdulmutallab was charged in civilian court.

Hoekstra even wrote an op-ed that appeared in his hometown paper on on Dec. 29 taking Obama to task over counterterrorism policy and the Christmas bombing attempt. But the op-ed didn’t criticize the fact that Abdulmutallab had been charged three days earlier in criminal court, nor that he was read his rights.

Bond, for his part, didn’t come out against Abdulmutallab being in civilian courts until Jan. 3, about a week after he was charged, according to a Nexis search.

As for the Miranda question at the heart of this week’s debate, none of the four seem to have mentioned the issue specifically until Hoekstra did on Jan. 13. That came only after the Miranda-specific attack had been initiated by Tom Ridge and Dick Cheney, as we explained yesterday.

The delayed GOP outrage may be explained by the fact that all previous cases of suspected terrorists captured on U.S. soil had been handled by the criminal justice system, as Attorney General Eric Holder noted last week.

Despite all this, Republicans are sticking to the Miranda attack. Amid calls by Bond and Hoekstra for Brennan to resign, Rep. Peter King (R-NY) told National Review that Brennan is “not being honest and forthright” about the phone call and the Miranda issue.

We asked spokespeople for the four Republicans why they didn’t respond to the criminal charges against Abdulmutallab when they were brought on Dec. 26. We’ll let you know if we hear back.

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