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:

A bipartisan revolt is brewing in the Senate over the Obama administration's handling of accused Detroit bomber Umar Farouk Abdulmutallab. A small but growing number of lawmakers is asking the president to undo what many regard as the disastrously wrong-headed decision to grant Abdulmutallab full American constitutional rights. Once he was told he had the right to remain silent, the accused terrorist stopped talking to U.S. investigators, possibly denying them valuable intelligence about the threat from al Qaeda.

 

The revolt started last week when top administration counterterrorism officials testified they had not been consulted about the decision to read Abdulmutallab the Miranda warning and give him a court-appointed lawyer. Several senators were aghast, including Homeland Security Committee Chairman Joseph Lieberman, the committee's ranking Republican Susan Collins, and the Judiciary Committee's ranking Republican Jeff Sessions. How could the Justice Department have done something so consequential without even consulting the administration's own experts on terrorism and intelligence?

 

The anger on Capitol Hill grew over the weekend, when the Associated Press reported that local FBI agents in Detroit were allowed to question Abdulmutallab for just 50 minutes before he went into surgery for several hours. During that time, Justice Department lawyers in Washington intervened and Abdulmutallab was later read his Miranda rights.

 

That was bad enough, but what really made lawmakers angry was when White House press secretary Robert Gibbs, appearing on "Fox News Sunday," insisted the 50-minute interrogation had been entirely sufficient for investigators to learn everything they needed to know about the al Qaeda plot to bomb Northwest Airlines Flight 253.

 

"You really don't think that if you'd interrogated him longer that you might have gotten more information?" asked Fox's Chris Wallace.

 

"Well, FBI interrogators believe they got valuable intelligence and were able to get all that they could out of him," Gibbs said.

 

"All they could?" Wallace asked.

 

"Yeah," Gibbs said.

 

That was it for some lawmakers. "It is now clear beyond doubt that the administration squandered an invaluable opportunity to gather intelligence from a captured terrorist fresh from al Qaeda's operation in Yemen," Sessions said. "But this weekend, the president's spokesman actually argued that the right call was made and that fifty minutes of interrogation was sufficient."

 

On Monday, Lieberman and Collins wrote to Attorney General Eric Holder, as well as top White House terrorism official John Brennan, saying the decision to give Abdulmutallab full American constitutional rights had been a serious mistake, but that "the administration can reverse this error, at least to some degree, by immediately transferring Abdulmuttalab to the Department of Defense ... [which has] the authority and capability to hold and interrogate Abdulmuttalab and try him before a military commission."

 

Sessions agrees, and it's a suggestion more lawmakers are likely to support in coming days. But it raises a critical question: Once Abdulmutallab has been given the Miranda warning, can the administration take it back?

 

"Of course," says David Rivkin, a lawyer who served in the Reagan and Bush I administrations. "To the extent that the facts justifying his designation as an enemy combatant are there, you can always designate him as such. Miranda rights are relevant only to interrogations in the criminal justice system. If he were transferred to the military justice system, it wouldn't be taking those rights back -- it would be just irrelevant."

 

Others worry that it wouldn't be so easy. "The problem is, once you get them into the civilian system, the federal courts have made very clear that they're not going to let go easily," says Lee Casey, another veteran of the Reagan and Bush I administrations who has co-authored several articles with Rivkin. "While I think it would be a great idea, given how solicitous the courts have been of these detainees, I doubt the federal courts would cede jurisdiction."

 

Whatever the degree of difficulty, it is a fact that Abdulmutallab was recruited by al Qaeda, trained by al Qaeda, and sent to the United States by al Qaeda. It's reasonable to assume he could be an important source of information about the terrorist organization. For Lieberman, Collins and Sessions, that makes it worth the effort.

 

You might think the president would agree. After all, he has said specifically that the United States is "at war against al Qaeda." But changing Abdulmutallab's status would be an admission that his administration got it wrong when confronted by an al Qaeda terrorist determined to kill Americans. And it's not at all clear that that is something the president is prepared to do.

 

Byron York, The Examiner's chief political correspondent, can be contacted at byork@washingtonexaminer.com. His column appears on Tuesday and Friday, and his stories and blog posts appears onwww.ExaminerPolitics.com ExaminerPolitics.com.

Read more at the Washington Examiner: http://www.washingtonexaminer.com/politics/Senators-rebel-over-treating-terrorist-as-civilian-82641967.html#ixzz0eITYEn7a

David Rivkin transcript:

Fox & Friends appearance, Monday, Jan. 25, 2010

(video available at youtube.com/justourfreedom)

Gretchen Carlson: Joining us now to weigh in is David Rivkin, a former Justice Department official. Good to see you, Dave …. When you heard Robert Gibbs say that the “crotch bomber,” as Brian likes to call him, was interrogated for only 50 minutes that made you extra hot under the collar. Why?

Rivkin: Absolutely. Because it is utterly incompetent. Every intelligence expert knows that it takes days and weeks and months to get all the intelligence you can get out of a person. Even then you don’t know if you got everything. To say smugly that 50 minutes is all you need is appalling.

 

Brian Kilmeade: It just defies logic. A customs official, an FBI official were the ones who questioned him for 50 minutes and then he got medical treatment.

 

Rivkin: You’re right, remember you’re supposed to get all the intelligence experts.

Where is the CIA? Where is military intelligence? Where is all the interagency cooperation that is supposed to be brought together to gain intelligence supposedly after 9-11? You had local people on the scene. Its probably not the “A” team, I hate to say it about Detroit—but the best people in Washington spend 50 minutes with him?

The thing is they did it. What is even worse from my perspective, they’re defending it. They’ve learned nothing from this experience. They had a knee jerk reaction to do law enforcement stuff, and they’re defending it weeks into the process.

 

Gretchen Carlson: Some people would say it’s not a knee jerk reaction, Dave, they would say this is the policy of the Obama administration. That they have made a determination in their minds that they’re going to charge any terrorist as a criminal, not an enemy combatant.

 

Rivkin: But they could’ve done that. They didn’t have to do it this fast. It was a knee jerk reaction because they didn’t have a system in place. Remember all these senior intelligence advisors were never consulted about it. It was not even decided by the attorney general. [This] was not enough time to call anybody in Washington.

They put a system in place that lurches toward the result and weeks later they’re still defending it. That’s why I was so upset listening to Gibbs yesterday.

 

Brian Kilmeade: [Umar Farouk Abdulmutallab] was talking non-stop.  Everyone agrees he was talking non-stop. Talking about second bombs.

 

Rivkin: You are most vulnerable at that time. Psychological shock, being captured, this is the time to press on.

 

And the minute they said you have the right to remain silent, you can have a lawyer he never spoke again and he’s got a lawyer. And they said they “hope” he changes his mind and begins to talk.

 

Rivkin: Lots of intelligence, even if you get out of him weeks and months down the road, would not be as actionable.

 

I can see you seething right now because you know what’s at stake. David Rivkin, thanks so much.

 

Rivkin: The security of the American people. Very depressed.

 

 

 

Former Justice Department official calls out recent intelligence failure on Fox & Friends show

Published on January 25, 2010

by Brent Baldwin

(OfficialWire)

WASHINGTON, D.C.

Lawyer and former Reagan Justice Dept. official David Rivkin was upset after hearing White House Press Secretary Robert Gibbs defend the decision to interrogate accused Detroit bomber Umar Farouk Abdulmutallab for only 50 minutes before granting him an attorney. Rivkin explained his frustration live during the Fox and Friends morning show that aired Jan. 25.

“Every intelligence expert knows that it takes days and weeks and months to get all the intelligence you can get out of a person. Even then you don’t know if you get everything,” Rivkin said. “To say, smugly, that 50 minutes is all you need is appalling.”

The accused terrorist was granted an attorney after a nearly hour-long interrogation session and immediately stopped speaking on the advice of counsel. Rivkin went on to argue that 50 minutes was not nearly enough time to consult experts in Washington, get feedback from the attorney general, or utilize interagency cooperation from the CIA and military intelligence.

“The thing is they did it. What even worse from my perspective, they’re defending it,” Rivkin continued. “They’ve learned nothing from this experience. They had a knee-jerk reaction to do law enforcement stuff, and they’re defending it weeks into the process.”

Rivkin said the Obama Administration could’ve still charged the accused terrorist as a criminal but that it did not have “a system in place” and should’ve consulted more senior intelligence officials. For instance, interrogators could have capitalized more on the mental state of the recently arrested prisoner, Rivkin said. “You are most vulnerable at that time. Psychological shock, being captured, this is the time to press on,” he told hosts for Fox & Friends.

Rivkin, who is a vocal proponent for classifying accused terrorists as enemy combatants instead of criminals, closed by lamenting the fact that much or any intelligence gathered from the suspect “weeks and months down the road would not be as actionable.”

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.

Contact

David B. Rivkin, Jr.
drivkin@bakerlaw.com
Tel: (202) 861-1731