Gulet Mohamed’s Interrogation without Counsel: Is this the New Miranda Policy?

Gulet Mohamed, the teen held in Kuwait, allegedly beaten, and interrogated by the FBI while in custody, is finally back in the United States. But before he reunited with his family, he was subjected to one more interrogation without his lawyer.

FBI agents have detained and are interrogating Gulet Mohamed, an American teen who was detained in Kuwait for a month, without counsel at Dulles International Airport outside Washington, DC, Mohamed’s lawyer said Friday morning.

[snip]

Mohamed’s family and lawyer claim that Mohamed has asked FBI officials for counsel multiple times during previous questioning. US legal and constitutional restrictions generally require that custodial interrogations stop when a subject asks for his lawyer. That rule does not seem to have been followed in this case. Mohamed traveled to Yemen and Somalia, two hotbeds of anti-American extremism, in 2009 (to visit family and learn Arabic, his family says). But he has not been charged with a crime in any country.

Now, Baumann points out that interrogations should stop once an American asks for counsel.

Or at least that’s the way things used to be.

But as Justin Elliot reported yesterday, the Administration has changed its Miranda policy. Only, it hasn’t explained what the change entails.

The Obama administration has issued new guidance on use of the Miranda warning in interrogations of terrorism suspects, potentially chipping away at the rule that bars the government from using information in court if it was gathered before a suspect was informed of his right to remain silent and to an attorney.

But the Department of Justice is refusing to publicly release the guidance, with a spokesman describing it in an interview as an “internal document.” So we don’t know the administration’s exact interpretation of Miranda, even though it may have significantly reshaped the way terrorism interrogations are conducted.

[snip]

Asked about the administration’s current stance on Miranda, Justice Department spokesman Dean Boyd sent along this statement about the new guidance that was sent to “relevant agencies”:

As demonstrated most recently after the attempted terrorist bombings last Christmas and in Times Square last spring, law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents. Because of the complexity of the threat posed by terrorist organizations and the nature of their attacks — which can include multiple accomplices and interconnected plots — we have formalized guidance that outlines the appropriate use of the well-established public safety exception to providing Miranda rights. To ensure that law enforcement is aware of the flexibility that the law gives them in these circumstances, the guidance has been distributed to relevant agencies.

So are the repeated interrogations of Mohamed without counsel a sign of what DOJ has permitted?

Mind you, today’s interrogation was probably something much more similar. As the experience of Wikileaks volunteer Jacob Appelbaum, who has been interrogated at the border on three different occasions, shows, our government maintains it can subject anyone crossing into our country to this treatment.

Yet that doesn’t explain the interrogations in Kuwait, coming after Mohamed says he was beaten.

So should we conclude the new Miranda policy allows beating and interrogations with no counsel so long as they take place in other countries?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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 the Guardian, Salon, and the Progressive, 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 and dog in Grand Rapids, MI.

  1. jiacovelli says:

    For all the silliness from the extreme right about “tyranny” because they don’t want to take orders from a black guy, I’m concerned that maybe we’re becoming desensitized, and don’t see real tyranny when we see it. The dictionary defines tyranny as “a form of government in which the ruler is an absolute dictator (not restricted by a constitution or laws or opposition etc.).” Now… what is the story of Gulet Mohamed, or of other similar cases BUT tyranny?

  2. kbskiff says:

    I guess if Obama’s DOJ is willing to rendition and torture an American citizen without charges it is but a small matter to ignore Miranda and deny access to counsel.

    I keep waiting for these tactics to start being used in whistleblower and drug cases.

    It’s just a matter of time.

  3. Larry says:

    “As demonstrated most recently after the attempted terrorist bombings last Christmas and in Times Square last spring, law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents.”

    But Gulet Mohamed seems to have been aware of some kind of right to an attorney on his own — not that it did him any good. He did not need the Miranda warning to know about his “rights”. Suppose Gulet asserted his right to an attorney but the FBI, let’s say, continued to question him before an attorney arrived. Could his answers to those questions be used against him?

    The timing of the provision of the Miranda warning may not be all that has changed.

  4. Skilly says:

    I would hazard a guess, that there is a view that it will not be prosecuted so all they might be worried about is the admissibility of any statements obtained after the request for counsel. More clearly stated, since they want info more than to put the bad guy away (lawfully) it makes better strategy to continue questioning and not care whether it will be admissible at trial or not. Any lawyer would tell you that the law (FRE) prohibits hearsay evidence. But any trial lawyer would quickly point out that there are so many exceptions to the rule as to render the rule worthless.
    The focus is on the fact finding mission and prosecution be damned. Heck, if they want the perp off the grid, they can just “Guantanamo” him and let him rot there till he gets his day in court, if ever.

    • emptywheel says:

      I think you’re right. But I also suspect DOJ is now anticipating some kind of suit from Gulet (I would be). The interrogations in Kuwait kept insisting he had seen al-Awlaki. So they may be trying to invent probable cause after the fact so as to excuse their treatment of him.

    • Mary says:

      Or, as the Pearl Project report points out, they can engage in more permanent options. The report pretty much says that people were just killed to end the problem.

      EW – if the FBI was already involved in his assault/interrogation in Kuwait, that issue of “immediate concern” is pretty damn blurry. This is the kind of thing that Hayden tried to do, IIRC, about his torturers and exigency. Since they took month to set up their torture cells and train their torturers and they were still holding and still engaging in abuse and torture months and months and even up to years later, he was painting the picture of not just a “global” war on terrorism, but a forever state of exigency.

      Their “statement” tries on its face to disenfranchise the courts from reviewing their new doctrine by invoking the “the complexity of the threat posed by terrorist organizations and the nature of their attacks — which can include multiple accomplices and interconnected plots” scenario. IOW, this is complicated Exec branch business, courts – you guys can’t understand it bc it involves all kinds of special exec branch kinds of knowledge and expertise and, oh yeah – states secrets-y stuff. So they combine that with their original GITMO effort of trying to say that if the person isn’t on US controlled land, then no US law applies. Non-custodial abuse & interrogation followed by non-mirandized custodial interrogation of an isolated abuse victim.

      Apparently Holder and Obama have cut a deal with Burge so he can go around and explain their new policies to “law enforcement agencies.”

      • Jeff Kaye says:

        O/T re the Pearl Report and KSM:

        The only real evidence are the confessions of KSM and the vein-matching. The first confession was under waterboarding. Vascular technology is not scientifically valid enough to withstand a challenge in court, without at least corroborating evidence. And that evidence is tainted by the torture.

        It’s no wonder the Obama administration won’t open the files in the Pearl case.

  5. sona says:

    it’s sad really – the hole’s getting deeper but it needn’t have been dug at all but now that it exists, the reckoning will be so much harder and that will have to happen eventually

  6. leveymg says:

    When you’re passing through Immigration, you’re in legal no-man’s land.

    No right to an att’y at the Port-of-Entry.

    That’s why, if you are facing hostile questioning, it’s a really bad idea to answer any substantive questions without counsel other than to insist that one is a U.S. Citizen with a lawful passport and are thus entitled, by law, to admission.

    They can take you into custody at the Port-of-Entry, but they can’t detain or interrogate you for a prolonged period without charges or a warrant. If they do detain a US Citizen or Lawful Resident without charges, one’s lawyer should file an Emergency Habeas Corpus with a U.S. District Judge. CBP may threaten one with a period of detention pending a hearing before an Immigration Judge on the issue of citizenship, but counsel may still go immediately to US District Court to seek release.

    This is without reference to the particulars of Mr. Mohamed’s case. If I were with the FBI, I would also try to question him at the airport, but would have to release him after a couple hours if he didn’t incriminate himself and there wasn’t enough to charge him with anything.

    However, if they really want to hold onto you, the feds will do as they did in the Jose Padilla case: remove you to another federal facility without giving your family or lawyer notice. A kind of internal rendition. In the Rumsfeld v. Padilla case, SCOTUS found by a 5-4 that the habeas petition had been misfiled because it was filed in NY and named Def. Sec. Rumsfeld instead of the brig commander in S. Carolina where Padilla had been moved without notice. That presumably remains a legal tactic.

    – Mark

    • Mary says:

      Good to “see” you and that’s a very good point on the remaining musical detention centers/agencies tactic.

    • pajarito says:

      -what if nobody knows you were taken into custody, and what if on detention they remove your cell phone or any other means of communication? Basically, you can be “disappeared” by the US.

      The only way this guy got notice out to the world was via a smuggled phone provided by another prisoner.

      One short step away from disappeared, then turned-up executed and dumped in a street somewhere, just like other banana republics.

  7. prostratedragon says:

    But the Department of Justice is refusing to publicly release the guidance, with a spokesman describing it in an interview as an “internal document.”

    I.e. something somebody has pulled out their ass? Maybe trying to vamp in ignorance of the airport loophole the FBI might have thought they were exploiting? It is hard to see how they might have thought that a kid who had been in custody continuously for weeks could be an immediate danger to public safety. That would be some bad jailing.

  8. tjbs says:

    Hey, obama could have ordered him assassinated and been done with him.

    I consider it just a simple twist of fate weather he lives or dies, according how obama feels that day.

    • klynn says:

      I have suspected this for a number of years. Interesting to read Hersh’s claim. Pretty brave location to deliver his speech on this concern.

  9. timbo says:

    Secret rules on the rights of prisoners issued by government officials who wish to remain anonymous? Sounds very much like tyranny to me…