How the Government Explains Uninterrupted Access to Faisal Shahzad

Close to midnight on May 3, authorities arrested Faisal Shahzad for attempting to bomb Times Square.

Over the following two weeks, the authorities questioned Shahzad, even as Pakistani intelligence detained Shahzad’s family members. The government told the press that Shahzad had waived his right to be charged in court and (though no one focused on this) a lawyer. Finally, on May 18, Shahzad appeared in Court and got a lawyer.

It turns out that on May 12, nine days after Shahzad was arrested, the US Attorney’s office wrote a letter–which they requested remain sealed–to the Court, explaining Shahzad’s status. Yesterday, they wrote a second letter asking that a redacted version of the first one be docketed.

The May 12 letter explains that each day that he was held, Shahzad waived his rights.

On May 4, 2010, subsequent to his arrest, the defendant, without counsel, knowingly and voluntarily waived his Miranda rights and executed a written waiver of speedy presentment. On each day since his arrest, the defendant has been re-advised of his Miranda rights and his right to speedy presentment, and on each day through and including the date of this letter he has executed a new written waiver of rights.

Note the focus here–not on his waiver to a lawyer, per se, but Miranda rights and the right to appear in court more generally. All of which, of course, contribute to forgoing a lawyer.

Which is why the two redactions in the letter are of interest, as at least one appears to pertain to the government’s uninterrupted access to him.

Since his arrest, the defendant has been questioned–and continues to be questioned–by federal agents on a number of sensitive national security and law enforcement matters for the purpose of preventing future attacks, identifying associates of the defendant and possible facilitators of the attempted attack, as well as gathering other actionable intelligence.  [half paragraph redacted]

Federal law enforcement agents are vigorously and expeditiously pursuing leads relating to this and other information provided by the defendant, a process which has required the participation of hundreds of agents in different cities working around the clock since the defendant’s arrest. Uninterrupted access to the defendant has been, and continues to be, critical to this process, which requires, among other things, an ability to promptly verify with him the accuracy of information developed in the investigation. [2 lines redacted] In short uninterrupted access has been, and continues to be, extremely beneficial, if not essential, to the investigation. [my emphasis]

The letter says nothing about what changed all this earlier this week. Nor does the May 19 letter explain whether the process (and the uninterrupted access) remained the same between May 12 and May 18. And neither letter includes Shahzad’s daily waivers.

But what the May 12 letter does suggest, at the very least, is that one reason the government was happy that Shahzad had waived his rights (and, presumably, the reason they’ve suddenly embraced the idea of “modernizing” Miranda) is that they wanted to have 24/7 access to Shahzad.

Sort of makes you wonder how much sleep Shahzad got during the two weeks he was available 24/7 and didn’t have a lawyer.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

24 replies
  1. ondelette says:

    The Right to Silence evaluated from an international perspective. Note that most of the cluster is also in the “Fundamental Rights” in IHL (enumerated in Article 75 of the 1st Additional Protocol). Makes us kinda the only nation that’s in the process of going the wrong way. The cited document was put together because China is considering formalizing the Right to Silence. Pakistan, e.g., since the Lawyer’s Movement and the subsequent end of military rule, has signed and ratified a bunch of covenants, as well as reforming their constitution. 83 countries have signed and 18 have ratified the ICPPED, but not the U.S.

    • MadDog says:

      Based on this Jake Tapper ABC News “exclusive” (Hah!), it is more a “firing” than a “resignation”:

      Exclusive: President Obama To Replace Director of National Intelligence Dennis Blair

      ABC News has learned that President Obama will replace the Director of National Intelligence, Admiral Dennis Blair (ret.) His resignation will come as soon as tomorrow, sources tell ABC News.

      For several weeks President Obama has been holding serious conversations about whether to ask Blair to step down and has interviewed candidates to replace him. After a discussion this afternoon between the president and Blair on a secure phone line about the best way forward, Blair offered to resign and the president said he would accept, sources told ABC News…

      • Jeff Kaye says:

        In that same article:

        At other points, Blair seemed simply out of the loop. In hearings looking into failed Christmas Day bomber Abdulmuttalab [2/6/10], Blair seemed unaware that the High-Value interrogation Group was not yet operational. He later walked back his statement.

        Unaware? Or is the struggle over the HIG quite intense? Since I mentioned Brandon up above, I’ll note that rumors had her as heading up a review on interrogations for DNI Blair. Something tells me Blair’s ouster wasn’t just because he couldn’t deliver “crisp” presentations.

      • emptywheel says:

        Oh, clearly. This is the designated deck chair your rearrange every 2 years rather than admit that Americans don’t have the human analysis capabilities to detect terrorists.

        • MadDog says:

          I have to say that Jake Tapper’s “gossip” source sure smells of Rahmbo.

          I distinctly remember reading that when Blair was giving the daily morning Intel brief to the President, that Rahm was always in attendance with Obama.

          Whether Blair deserved the lynching, someone is making sure that’s the spin.

  2. BoxTurtle says:

    Operating on the asssumption that his lawyer is a real lawyer and not a government flunky, I’m gonna guess he was treated within accepted norms. There’s been no court filing about mistreatment and there’s been plenty of time to do so.

    I do recall a request for a Dr’s examination and I have no idea if that’s happened or why it was requested.

    They’re gonna have to share a transcript of the interrogation in discovery. That’ll be interesting. I doubt they’ll have to share a video, though.

    Boxturtle (Looking for a guilty plea in return for a chance of parole and better conditions)

  3. harpie says:

    This

    Sort of makes you wonder how much sleep Shahzad got during the two weeks he was available 24/7 and didn’t have a lawyer.

    reminded me of this Feb. 19, 2009 CCR Press Release:

    JS 1026 & 1048 (Identical pages with different redactions from the Vice Chairman of the Joint Chiefs of Staff’s “Detainee Update” presentation regarding “Internment Serial Number Policy [ISN],” appear to be dated August 2005) show that the DOD did not, as a matter of course, register detainees with the ICRC until they had been in custody for up to 14 days and that authorization was sought to hold some individuals for up to 30 days without ISN/registry with ICRC to “maximize intelligence collection,” even though “there is some disagreement as to legal basis to go beyond 14 days.” These policies demonstrate the ease with which the CIA could have used DOD facilities as “sorting facilities” without having to worry about ICRC oversight or revelation of the ghost detainee program.

    Thanks for that information, ondelette @1.

  4. MadDog says:

    Perhaps one (or more) of our fine Legal Eagles here can explain a question I have. That is:

    How can the Federal judicial system and its laws allow the Department Of Justice to have Ex Parte dealings with Federal judges about the ongoing detention of an unrepresented-by-attorney US citizen being held within US territorial boundaries in Federal custody without the least embarrassment that said unrepresented-by-attorney US citizen has no legal representation to perform the vaunted adversarial role as ascribed in our Constitution?

    I realize that our judiciary has a distinct prosecutorial bias, but come on!

  5. Jeff Kaye says:

    While the circumstances may be quite different, the incessant interrogation, with no access to an attorney, supposedly because of national security reasons, reminds me of the Daniel King case, which I reported on last summer. In that interrogation, the agents of the NCIS relied heavily upon isolation, threats, and sleep deprivation. They got their “confession,” followed by the mental breakdown and suicide attempt of the prisoner (who was released many months later, when his abuse under interrogation surfaced in court).

    By the way, the psychologist in that case, working with NCIS, Michael Gelles, remains a primary figure in national security/interrogation circles. I wouldn’t be surprised to see him on or advising the HIG. Other dubious types are swimming in those waters. Susan Brandon, who ran the CIA/APA/Rand workshops on how to break down people with sensory overload and drugs, for instance, is now Chief for Research, Behavioral Science Program,at DCHC.

    I mention the HIG, because as you pointed out Marcy, they were somewhat involved in the Shahzad interrogation (though info on that smacks of some sort of disinformation… they’re keeping everything about the HIG very close to the vest).

    Just some observations….

    Thanks for staying on top of this.

  6. MadDog says:

    OT – British Intel, Torture and Judicial Inquiry?

    Government to probe torture claims

    The new coalition Government is committed to setting up a “judge-led inquiry” into allegations of British security services complicity in torture overseas, the Foreign Secretary has confirmed.

    William Hague said details of the probe were being worked on by the power-sharing parties and would be published “pretty soon” but declined to say whether it would be a judicial inquiry.

    Both Conservatives and Liberal Democrats called for such an investigation of a number of recent claims before the election – including those by former Guantanamo Bay detainee Binyam Mohamed.

    He said he was tortured in Pakistan while held by the CIA, with the knowledge of the British.

    Mr Hague told the BBC: “We will be setting out in the not-too-distant future what we are going to do about the allegations that have been made about complicity in torture. We have said again in the coalition agreement that we want a judge-led inquiry…

    • MadDog says:

      And more detail from the Guardian:

      Torture and rendition: Inquiry expected to expose officials who colluded

      The judicial inquiry announced by the foreign secretary into Britain’s role in torture and rendition since September 2001 is poised to shed extraordinary light on one of the darkest episodes in the country’s recent history.

      It is expected to expose not only details of the activities of the security and intelligence officials alleged to have colluded in torture since 9/11, but also the identities of the senior figures in government who authorised those activities…

  7. MadDog says:

    More on the Blair firing from Siobhan Gorman of the WSJ:

    Top Spymaster Asked to Resign

    …Rumors of a possible resignation had been circulating for months, but they had intensified in recent days, especially after the Senate intelligence committee issued a report earlier this week that sharply criticized the lack of coordination among the intelligence agencies prior to the Christmas Day bombing attempt last year.

    The White House’s response to that botched bombing attack, in which a Nigerian national attempted to blow up a Detroit-bound Northwest airliner, was another indication of diminishing White House faith in Mr. Blair.

    Instead of asking Mr. Blair to head a review of the intelligence failures leading up to the attack, President Barack Obama asked the White House counterterrorism chief, John Brennan to take charge.

    “The fact that Director Blair was not nearly as visible as John was in the aftermath of the December 25th thing is something that 100,000 people in the intelligence community, I’m sure, took note of,” former CIA Director Michael Hayden said at a recent Washington forum on intelligence policy. “That was not a good thing…”

    • harpie says:

      I’ve only read things quickly, but it seems to me that the ACLU generally is positive about it and CCR is not.

      It seems CCR’s position is that because the administration didn’t get what it wants, that they will just not [be able to] address the problem. I haven’t found an official statement from them about it yet, but this is CCR [from Ackerman’s article]:

      “this makes it much, much harder for the administration to move forward with the closure of Guantanamo, there’s no doubt about that,” said Vincent Warren, the executive director of the Center for Constitutional Rights. “It’s hard to see what reasonable options the president has without jumping through congressional hoops that are unreasonable and unnecessary, and it’s harder to move forward both with prosecuting those who are terrorist suspects and releasing to freedom those who are not.”

      But beyond the closure of the detention facility itself, the prohibitions now contained in the bill have policy implications for the dispensation of justice for detainees remaining at Guantanamo, a burning political issue all through this year. Those “abhorrent” prohibitions, Warren said, “essentially prohibit the executive from moving forward with its constitutional and human-rights obligations to try people [and] creates a paradigm where the operative default mechanism will be to detain people without trial.”

      Here’s CCR’s Guantanamo page:

      The ACLU seems to think that now the administration will be forced to release or try the detainees more efficiently if they want to keep their promise to close Guantanamo. Here’s their press release:

      House Committee Rejects “Guantanamo North“; 5/20/10

      […] We are encouraged that the committee has chosen to reject turning the Thomson prison into a ‘Guantánamo North’ that would institutionalize the Guantánamo policy of indefinite detention. By prohibiting funds for modification or construction of a facility to hold these detainees, the committee has created an obstacle for indefinite detention on U.S. soil. Guantánamo must be closed as soon as possible, but in a manner that complies with the rule of law and does not continue the prison’s most troubling and illegal policies. […]

      This is just my first impression. I’ll keep looking for CCR’s press release.

  8. harpie says:

    Related:
    Politicizing Miranda; Modifying who has the right to a Miranda warning is a political solution to a national security problem that doesn’t exist; Adam Serwer; American Prospect; May 20, 2010

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