President Obama Needs More Legal Tactics Against Terrorists

The Washington Post, May 14, 2010

It is a pincer action against the presidency — a bipartisan, cross-ideological effort to make it as difficult as possible to handle domestic national security emergencies. In an unfolding terrorism crisis, the political class attacks whatever means any administration uses to neutralize a major terrorist suspect. If the president plays by the rules of law enforcement, we criticize him for endangering America and insist he should have played by the rules of warfare. If, by contrast, he plays by warfare rules, we cry that he has undermined the rule of law and should have stuck with law enforcement norms.

The presidency badly needs more political and legal latitude when authorities capture a suspect in an ongoing plot. And Attorney General Eric Holder is right to seek relief from the pincer.

The problem of the crisis detention did not originate with the would-be Times Square bomber or with the would-be Christmas Day bomber. It arose before Sept. 11, 2001. It will occur again.

And whenever it happens, the executive branch faces a no-win situation: If it treats a terrorism suspect as a criminal, a series of rules, statutes and Supreme Court opinions force quick actions that can disrupt critical interrogations. The most famous of these — the one on which much public debate unfortunately focuses — is the requirement that authorities read the suspect Miranda rights. This alone is not an especially serious impediment. More significant is the requirement that the suspect appear quickly before a magistrate — a process that necessarily interrupts discussions and impresses on him the gravity of his situation. If the suspect then stops talking, authorities lose crucial intelligence about other plotters. And because such intelligence is time-sensitive, even if the suspect eventually starts talking again, opportunities may have disappeared.

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