From Fox & Friends, original airdate: 2/6/10

Was it proper for them to be mirandizing this guy in the first place?

David Rivkin: Utterly improper and Clayton forget about the critics. The justice dept senior official, U.S. attorney for the Southern District of New York [Preet Bharara] on Dec. 18 argues in a filing that its essential to treat a person like Ghailani or Abdumuttalab as intelligence assets, with protracted interrogations, psychological dominance, to illicit ever bit of intelligence information back and forth—not 15 minutes.
Remember he’s at his most vulnerable right after his capture. This was a huge mistake.

We seem to have gotten a lot of information from this guy.

Of course. But we didn’t get this information in a timely fashion. So intelligence got stale. And just because we’re getting some intelligence stream out of this guy doesn’t mean we couldn’t have gotten more.
My point is, don’t listen to me, listen to Mr. Bharara, U.S. Attorney for the Southern District of New York, who wrote this filing up to consult the intelligence community that espouses the virtue of treating somebody as an intelligence asset. Forget about where he’s going to be tried eventually, that’s a different debate. We could’ve treated him as an enemy combatant, interrogated him humanely for several months, got everything out of him and then made a decision whether we want to put him in a criminal justice system.…. We got some information out of him, we could’ve gotten more. There’s no doubt about that.





From THE ED SHOW on MSNBC original airdate: 2/8/10

Video opening of footage of top counter terrorism chief John Brennan explaining the night of Detroit bombing.

Ed: Why the Republican criticism so late when they knew the day it took place what was going on?

Rivkin: First of all, they didn’t. It’s interesting that Mr. Brennan says that being in FBI custody is synonymous with being Mirandized. What’s interesting is at the beginning of this administration they announced the creation of something called HIG, high interrogation group that was centered in the FBI. They specifically said it did not mean people would be invariably Mirandized. So Brennan is just factually wrong. Let me just point out isn’t it kind of silly to be talking about, gee, why didn’t the other side complain instead of looking at the underlying substance of this.
We’re talking about somebody who is interrogated for 50 minutes, that interrogation was interrupted and he is Mirandized. I don’t know of any serious interrogator who does not believe that we should have a go at him for several weeks.

Well, what you’re saying may be true. But no Republican at the time had any objection for weeks on end on this issue?

Ed, I just explained that they did not know when he was going to be Mirandized.

Well you’re assuming that. You’re putting your credibility against Mr. Brennan who says they were told.

No, Mr. Brennan said that Abdulmutallab was in FBI custody and that invariably meant he would be Mirandized …. I’m telling you when the administration eye-level announcement, when they created HIG, specifically said it did not mean that people would get Mirandized. So unless they could read Mr. Brennan’s mind … The notion they [Republicans] could conceive the administration would be so foolish as to Mirandize him in 50 minutes is quite simply ludicrous. Of course they didn’t conceive of it. It would’ve been crazy!



From Fox and Friends, original airdate:  2/11/10

Host: Supreme Court said California is different; they do have, under the Constitution there, a right to free speech in parts of the mall subject to reasonable regulation. So wasn’t the pastor’s first amendment right violated?

David Rivkin: I think it’s an excellent case as you correctly point out under the California Constitution; it’s broader in scope than the federal Constitution. And the gist of it would be this: the regulations the mall put in place were overly broad and they were enforced in an arbitrary fashion. Remember he did not carry placards, he did not try to organize a demonstration which is the kind of activity for which you would need a permit, he just had a conversation with free shoppers. And the notion that you need to get advance approval for that kind of interaction is quite frankly, silly.

The mall instituted two “reasonable” restrictions—a specific place in the mall, and the speaker has to submit an application four days in advance. Doesn’t that strike you, as a lawyer, as maybe potential censorship and unreasonable?

It is. And again it would be quite different if we were talking about a large city where you were going to organize a demonstration of many thousands. A number of cities don’t require that long of an advance period. So they manage it. 

But another thing to emphasize: these regulations only apply to conversations involving political and religious and other noncommercial speech. So it’s not just a question of reasonable regulations such as place. But it’s the content because it seems to single out religious and political content.

That may be what bothers people. It’s ok to strike up conversations about baseball but not God. There’s something that may be offensive to a great many people about that.

That is absolutely true. Let’s be clear: content regulation, or regulations that treat one type of speech different from another are almost always unconstitutional … For example in the context of getting a permit, let’s say: It was reasonable to get a permit for a large demonstration, but regulations said you don’t need to get one when talking about art, but if you’re talking about God you need a permit. That would be struck down without a doubt.

If I’m a business owner and someone is proselytizing in my store, I guess I have a legit business interest in preventing that from happening and thus the reasonableness of the designated area?

No, what you want to do is tailor restrictions as narrowly as possible. Concerning behavior in a store: If someone is driving customers away there would be nuisance and loitering approaches that would enable you to ask the person to leave, or cause them to be arrested. You don’t need to have regulations of this kind here. But nothing like that happened here.

Yes or no: Is the preacher going to win?

Well, it's in California State courts but I think he has an excellent change of winning. He obviously lost so far at the trial level, but things tend to get better results at the appeal level. I’m optimistic he would win.

---

Add this page to your favorite Social Bookmarking websites

David Rivkin responds with call for serious evaluation of FBI interrogation policy

Published on February 09, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

On the hot seat of MSNBC’s The Ed Show, former Justice Department official David Rivkin called Deputy National Security Advisor John Brennan “factually wrong” when insisting that senior members of Congress were aware that Miranda rights would be given so soon to terrorist suspect, Umar Farouk Abdulmutallab.

“It’s interesting that Mr. Brennan says that being in FBI custody is synonymous with being Mirandized,” said Rivkin, Senior Fellow at the Foundation for The Defense of Democracies and co-chair for the Center for Law & Counterterrorism.  Rivkin pointed to an organization within the FBI known as HIG (high-level interrogation group), formed early in the administration, that had previously announced it did not require Mirandizing a suspect.

“The notion [Republicans] could conceive the administration would be so foolish as to Mirandize him in 50 minutes is quite simply ludicrous. Of course they didn’t conceive of it. It would’ve been crazy!” Rivkin said.

The show segment from Feb. 8th began with a Meet The Press clip of Deputy National Security Advisor John Brennan explaining that he had briefed several senior members of Congress on the night of the Christmas attack who never expressed reservations about standard FBI procedure. Among those was Senate Minority Leader Mitch McConnell, now one of the loudest critics of the Obama administration’s handling of the brief interrogation.

Liberal host Ed Schultz tried to paint the entire Republican argument as “political posturing” and challenged Rivkin, saying he was pitting his credibility against the word of Brennan. But Rivkin remained adamant that officials would not have simply assumed Miranda rights were being given automatically. Rivkin also pointed out that there should be less blame cast by both sides and more attention to the underlying failures in common sense procedure.

“We’re talking about somebody who is interrogated for 50 minutes, that interrogation was interrupted and he is Mirandized. I don’t know of any serious interrogator who does not believe that we should have a go at him for several weeks,” Rivkin said.


About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents’ terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.
For more information, visit www.davidrivkin.com or contact:

---

Add this page to your favorite Social Bookmarking websites

The following was transcribed from the January 5, 2010 Hardball with Chris Matthews program.

Chris Matthews: In an effort to increase security, obviously, the Transportation Security Administration (that's the TSA; the people that check us at the airport) has increased screening measures for airline passengers coming from 14 countries around the world there. They’re all highlighted there [Algeria, Nigeria, Libya, Cuba, Sudan, Somalia, Yemen, Saudi Arabia, Syria, Iraq, Iran, Lebanon, Afghanistan, Pakistan]. I have Alejandro Beutel there with the Muslim Public Affairs Council. He says this is the wrong way to go about safety. David Rivkin, a former Reagan and Justice Department official who’s been with us, disagrees. Let me start with you, David: Why is it smart to go to these 14 countries— Afghanistan, Algeria—includes Cuba, by the way—Iran, some on the state terrorism list. All these countries, mostly Islamic countries except for Cuba, I guess—and what they’re doing in these cases are extra pat-downs, basically extra check of your carry-on luggage, it’s sort of what they do –I travel all the time, gentlemen—it’s what they do when you get on that SSS list, when they pull you aside and they say ‘Okay, we’re going check out everything, we’re going to wand you, we’re going to check your luggage by hand.’ They do that to you if you break one of the rules or the buzzer goes off too many times. Is that the right or wrong way to go?

David Rivkin: It’s a reasonable way to go. Let’s agree that profiling, leave aside political correctness, is a way of marshalling scarce resources to manage a large threat. The real question: Is this the right way to profile? Let’s agree that coming from these countries is a reasonable proxy for the enhanced probability they might be a terrorist. I frankly think we need to look at other factors: we need to look at age, we need to look at gender—

CM: What does that tell you?

DR: Well, young males are disproportionate—again, we shouldn’t be blinded by this—there are some women terrorist bombers, but by and large they are males—

CM: Okay then, let me ask you this question: The people that attacked us on 9/11—Hard, horrific evidence—they were checked, they were called back out of line again because they set off the metal detectors. They’re carrying box cutters! They were still allowed to get on the planes. They still killed the 3,000 people. So, what good does it do to pull a person out of line and do one of these pat-downs if all it’s going to do is slow somebody down for ten minutes?

DR: Nothing if it’s ineffective by itself, but if you combine it with other measures—you have to work the process from beginning to end. Selecting people, checking people, and making sure they don’t get through if they are carrying some suspicious objects. You need to do all of them; it’s not either/or.

CM: What do we do? These are countries, not ethnic groups, being identified. These are countries, and by the way just to remind everybody: 9/11? 15 Saudis, one Egyptian, one Lebanese and two from the Emirates countries, the UAE. So they come from certain countries so far. They could be coming from Denmark tomorrow. We don’t know, but their countries of origin correspond to the countries on this list. Your thoughts?

Alejandro Beutel: Exactly. Well, my colleague mentioned before that we need to have a layered defense, and that’s correct. But the sort of ethnic and religious profiling that’s taking place—

CM: Where is that taking place?

AB: Right now with the latest TSA standards, by selecting these 14 countries, that’s just basically telegraphing our strategy. If we decide to profile from these countries, then terrorists are just going to recruit elsewhere. Profiling’s not going to help against Richard Reid, it’s not going to help against Jose Padilla, it’s not going help against any of the UK bombers that took place in the 2006 plot—

CM: Why not?

AB: Because these are people who don’t fit profiles. A 2005 study by the Library of Congress found that there is no such thing as a reliable terrorist profile, especially based on ethnic background.

CM: But this is by country—country of origin.

AB: Yes. I understand that, but again though, even based on country of origin terrorists can—

CM: Okay, so if you can only check certain people, because you can’t check everybody, who should you check? Have you ever been to LA airport, LAX, in the morning, 6:00 when there’s a billion people there?

AB: Yes, Absolutely. Yes.

CM: Or around here at Reagan where there’s a billion people there on a Saturday morning, you can’t check everybody through exhaustive checks or people will never get on a plane, so how do you single out the people you check? That’s a question I want answered.

AB: Well, let’s go back to what President Obama was saying earlier in his statement about the review: What we need to do is make sure that our intelligence actually connects the dot.

CM: But in terms of checking people when they get on airplanes, which people should be checked most thoroughly?

AB: Well actually what you need to do in terms of a smart defense is make sure that, in the layers themselves, you need to check people beforehand by having the proper intelligence—

CB: But how do you check when they get on airplanes? I’m asking a simple question. Give me an answer.

AB: I’m getting to it, because it’s a nuanced issue. So you have Stage One beforehand and then once you get to the airport itself, what you do is you look at certain behaviors that they are doing—behavioral profiling—if they’re doing something that’s strange, if you’re asking basic questions about ‘Where are you going to be going?’

CM: Wait a minute. Who asks these questions? I go to an airport and they don’t ask any questions.

AB: Behavioral profiling, for instance at Logan Airport in Boston, they’re doing something right now where they have a pilot program where it’s a part of airport security itself. One of the last rings of defense is that they look for things that are possible suspicious behaviors. It doesn’t look at ethnicity or race or religion, but looks at the actual behaviors themselves—things that might be dead giveaways to someone who might have something suspicious.

CM: Like what?

AB: For instance, if someone’s going to be doing something where they’re going to be a little bit fidgety, or they’re not answering questions straight—

CM: But there are no questions put to you.

AB: In some cases, though, there will be questions put to individuals at the last minute.

CM: I’m all for that, but how do you decide who to ask the questions of?

AB: It’s not just about questions either, though. It’s also making sure to read the body language, again there are multiple things—

CM: Ok, give me a procedure to defend America, quickly. What would be your procedure to defend this country? His [Rivkin’s] procedures at least start with this country of origin.

DR: I’m not against the nuanced profiling.

CM: What would be your approach?

AB: My approach would be a layered defense starting with smart intelligence making sure that we share the information, then from there making sure that once we get closer to the airport we have behavioral assessments that don’t rely on certain profiles that are not going to be effective.

CM: Like country of origin?

AB: Like country of origin, ethnicity—

CM: Okay, I just don’t know how you would go about it. You said they ask questions, they don’t ask any questions right now.

DR: No. We need this kind of profiling. I’m not against nuanced behavioral profiling. We don’t have resources for it. But let me point out, the ultimate criticism is profiling is ineffective. Let me tell you, if we push Al-Qaeda to stop recruiting the people they’ve been recruiting and start looking for Scandinavians—

CM: Yea, they will.

DR: They will, but they would trickle down. This is what you do in warfare. You push your enemy to operate in less than optimal ways. I would bet you they’re not going to be able to recruit enough Scandinavians, and profiling is just the starting point. You are supposed to look at other things. It’s not a panacea, but to deny that it’s useful as a foundational stone is just silly.

AB: No. It only displaces the problem and all it takes is one or two people to do these things. That’s all it takes.

DR: No it doesn’t displace. Why does it displace?

CM: Let me ask you a general question. Let’s get away from race and all this and get to the simple question. Let’s get to nationality. If you’re looking for provisional IRA people back ten years ago, wouldn’t you start with the Irish?

DR: Of course.

CM: I mean, is that unreasonable? Is that prejudicial? Let me ask you that. Is that prejudicial, to look for the IRA among the Irish? Is that prejudicial to you?

AB: No, because—

CM: Because they recruit the IRA among the Irish.

AB: But the thing is that it’s very specific. There’s a difference between the IRA, which was an ethnic-based group, very specific—

CM: Don’t you recruit Islamic terrorists among Islamic people?

AB: How can you tell who’s a Muslim?

CM: But this list is starting by nation-states. Like you would start with Ireland, if a guy’s got a passport from Northern Ireland, you might say—

AB: But Chris, how can you tell who is a Muslim?

CM: You can’t tell!

AB: Exactly, and that’s part of the thing. You cannot—

CM: But you can begin to. Let’s get back to my question. A thousand people get on the plane. You can only check ten. Which ten do you check? That’s what we’re saying.

DR: Not the old little grandma, that’s for sure.

CM: Do you check Joan Rivers?

AB: No, but you can’t necessarily tell who’s a Muslim.

CM: Ok, this is the problem, and here’s where I get a little heated because I think everybody likes to push aside the issue. You have limited resources. I don’t think we’ve paid the TSA people enough. I think we’ve seen some New York cops—retired cops with street instinct—standing around those airports, who have a sense of these questions. By the way, you can’t interrogate passengers. You can’t ask them all these questions right now.

DR: Let me explain one thing. My colleague doesn’t want profiling, let’s be candid, because he’s afraid it would lead to broader stigmatization of a community. This is not what this country is about.

CM: Yea. I would hate it if automatically I was a trivialized person every time I went to an airport. I wouldn’t like it, either.

DR: What we are talking about is allocation of scarce resources, not stigmatizing people.

CM: I’ll tell you one thing: Everyone from those countries knows why this is going on, and it’s not because of prejudiced people. It’s because common sense tells you. By the way, if Americans kept attacking Arab countries, we’d be checked.

DR: Of course. Profiling is common sense.

CM: I hate to say it, but this conversation’s going to get more heated as time goes on. If we get hit again, this won’t be a calm conversation. Thank you both for coming. Please come again.

---

Add this page to your favorite Social Bookmarking websites

Former Justice Department official David Rivkin calls increased airport screening a starting point on Hardball with Chris Matthews

Published on January 06, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

Former Reagan Justice Department official David Rivkin appeared live on MSNBC's Hardball with Chris Matthews to discuss increased airport profiling measures in the wake of the Christmas Day attempted terrorist bombing of Flight 253 to Detroit.

It's a reasonable way to go. with profiling, let's leave aside political correctness, Rivkin told host Chris Matthews. It's a way of marshaling scarce resources to manage a large threat. The Transportation Security Administration has increased inbound flight screening measures in 14 foreign countries of origin including: Afghanistan, Iran, Saudi Arabia, Cuba, Libya, Pakistan and Nigeria.  Rivkin noted that the real question was whether this was the right way to profile.

"I frankly think we need to look at other factors: We need to look at age, we need to look at gender. but we shouldn't be blinded by it," he added.

Rivkin asserted that the profiling process should be combined with other measures and worked “from beginning to end of the transportation process. "Selecting people, checking people, making sure they don't get through if they are carrying some suspicious objects, you need to do it all," Rivkin said.

Joining Rivkin on the broadcast was Alejandro Beutel of the Muslim Public Affairs Council, who offered a counterargument that behavioral profiling was more useful, while agreeing with Rivkin that there should be a layered defense. Matthews took the side of Rivkin, also admitting our lack of resources and pointing out to Beutel that it was simply common sense to profile based on countries of origin.

"I'm not against nuanced behavioral profiling but we don't have the resources for it," Rivkin said. If we push Al-Qaeda to stop recruiting [from these countries]; this is what you do in warfare, you push your enemy to operate in less than optimal ways. I would bet they won't be able to recruit enough Scandinavians [to counter profiling measures].

Rivkin told Beutel that he was wrongly worried about broader groups being stigmatized. "We don't do that in this country, Rivkin said. All we are talking about is allocating resources, not stigmatizing."

About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents' terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.

For more information, visit www.davidrivkin.com or contact:

David B. Rivkin, Jr.
drivkin@bakerlaw.com
202.861.1731
Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304

---

Add this page to your favorite Social Bookmarking websites