Presentment Journey: there are bigger issues than Miranda

But the big issue, in my opinion, is presentment, whether he is brought before a judge within 48 hours. In addition to stretching Miranda, the government has also been holding and interrogating suspects for periods — up to two weeks for American citizens and far longer for non-citizens — before they see a judge. Not only does this postpone the time when they will be given a lawyer whether they ask or not (because judges are going to assign one), but it gives the government an uninterrupted period of time to use soft coercion to get testimony and other kinds of cooperation.

In my opinion, two of the most troubling cases like this, both involving naturalized citizens accused of terrorism, are Faisal Shahzad and Manssor Arbabsiar.

Shahzad was held and questioned, reportedly with the help of the HIG, for two weeks before he first appeared before a judge. Each day during that period, he signed a waiver of his right to appear before a judge. Ultimately, he plead guilty, so no one every questioned whether his confessions were coerced or not.

But there are two details that I think raise questions about whether he freely waived his rights. First, within a day or so of his arrest, Pakistani authorities had detained a friend of his and his father-in-law in Pakistan. The day after that, authorities put Shahzad’s father, and possibly his wife and children, under “protective” house arrest. That is, even before he normally would have been permitted to see a judge, his loved ones — possibly even his kids — were in Pakistani custody. Particularly given the way our government used threats to family members with detainees being tortured, this seems like a potential way to coerce a presentment “waiver.”

Then there’s the reason the government gave for wanting uninterrupted access to Shahzad:

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. [my emphasis]

The government said it wanted to avoid presentment so it could have uninterrupted, around the clock, acces to him to verify information with him. Recall the technique used at Gitmo, “Frequent Flier,” where detainees would be wakened and moved, as a way to continue to use sleep deprivation without looking like they were doing so. The language of round-the-clock access seems to permit the same kind of sleep deprivation by default.

Like Shahzad, Manssor Arbabsiar (the Scary Iran Plotter) had a period of delay before seeing a lawyer, 12 days. During that period, he provided a confession that would be the cornerstone of most of the charges against him, and would also be about the only admissible evidence directly implicating the Quds Force in Iran. Without that confession, in other words, the government had almost no case, and certainly not one they could make an international incident over.

In that case, too, the government seemed to implicate his brother (who had transferred money to him) during the initial period, which raises questions about whether that helped to get him to cooperate. The government kept Arbabsiar hidden away at a military base, rather than a jail. The government never told Arbabsiar that charges against him had already been filed, so he never knew what those charges were (or what they didn’t include, which was a bunch of stuff he confessed to).

But it’s in the way the government got Arbabsiar to sign his first waiver I find most troubling. Arbasiar was detained in Mexico sometime on September 28, 2011 (the government has never publicly revealed what time). He was held there for some time, then flown to JFK, arriving at 8:40 PM on September 29, where he was arrested. He was questioned for three hours in what sounds like a bogus public safety exception form (there was absolutely no reason to believe there was a public safety risk, not least because Arbabsiar’s main co-conspirator was a DEA informant). And only then was he first asked to waive Miranda. But the government’s discussion of this timing (which was a response to an almost entirely redacted defense motion to throw out this confession) ties that waiver with Arbabsiar smoking a cigarette. It appears — though the facts on this are almost entirely secret — that the government detained a chain smoker at least three and more likely at least 24 hours (and possibly up to 48 hours, given his detention in Mexico), and then used the offer of a cigarette to get him to waive his most basic rights. There also appears to have been food involved (though Arbasbiar had the opportunity, which he didn’t use, to eat on the plane to the US), but the use of a cigarette to get someone to waive Miranda seems especially troubling (I realize rewards like cigarettes are central to non-violent interrogation, but apparently tying to basic rights is far more troubling).

Arbabsiar’s lawyer had a slew more complaints about his pre-presentment conditions (some also seem to do with food), but we don’t get to see those.

Which is part of the point. What the government did by delaying presentment in these two cases was to afford itself a 2 week period of oversight free interrogation. And there are at least hints –hints that, because both men ultimately plead out, we’ll never learn more about — that the interrogations used some of the same techniques we’re supposed to have left behind.

In only Arbabsiar’s case did the government need the confession elicited using these methods. Like Dzhokhar, Shahzad was caught in the act, with tens or hundreds of witnesses. Nevertheless, the government chose to infringe on the fundamental right to a lawyer, likely guessing it could get the accused to plead guilty and hide all this detail from the public.

Now the government no doubt would claim it needed to do this for intelligence purposes (indeed, the case of the UndieBomber, where they were never able to coerce his cooperation, even though his public defenders appear to have advised him to do so, and therefore had apparently unadmissible evidence against Anwar al-Awlaki may be why they did this), whether that purpose amounted to real intelligence or propaganda they could use internationally. But ultimately, this practice is corroding our legal system (and this approach will surely be adapted for other uses, such as hackers).