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A Project of The Annenberg Public Policy Center

Detaining and Interrogating Terror Suspects

Sen. Lindsey Graham went too far with his claim that the Obama administration has a policy of “not interrogating or detaining terrorist suspects anymore.” The administration no longer subjects terrorism suspects to indefinite interrogation at Guantanamo Bay — a policy Graham opposes — but it still detains and interrogates terrorism suspects.

The South Carolina Republican made his comments during a CNN interview on Jan. 7 when he was asked whether the U.S. ought to raise the terror threat level in response to the killing of 12 people at the satirical magazine Charlie Hebdo in Paris.

Graham said he thought the U.S. should, and he warned that sequester budget cuts would hamper intelligence gathering.

Graham, Jan. 7: The only way you protect America is to find out about these things before they happen. Between budget cuts on the intel defense side and the Obama administration’s policies of not interrogating or detaining terrorist suspects anymore, reading them their rights, is leading to less intelligence.

National Security Council spokesman Ned Price told us via email that it is simply inaccurate to claim the Obama administration no longer detains and/or interrogates terrorism suspects.

“As a general rule, the government will always seek to elicit all the actionable intelligence and information we can from terrorist suspects taken into our custody,” Price said.

We asked Graham’s press office to clarify his claim that the Obama administration has a policy of “not interrogating or detaining terrorist suspects anymore.” It directed us to two articles about the capture of suspected terrorists who Obama administration officials announced would face criminal charges in U.S. court. The articles both noted Republican calls to instead transfer those subjects to Guantanamo for indefinite interrogation.

In neither case, however, did the decision to try the suspects in U.S. courts preclude interrogation of the suspects.

The first case involved the detention of Abu Anas al-Libi, one of the FBI’s most wanted terrorism suspects, who has been implicated in the 1998 U.S. embassy bombings in Africa. The Associated Press reported on Oct. 8, 2013, that al-Libi was being held and interrogated aboard a U.S. Navy warship in international waters. The AP reported: “For the administration, keeping al-Libi at sea gives intelligence officials time to interrogate him before he is brought to the United States and provided access to lawyers.”

The story quotes Graham opposing the decision to not transfer al-Libi to Guantanamo for indefinite interrogation.

Graham, Oct. 8, 2013: Putting him on a Navy vessel for a matter of days or weeks is not a proper way to gather intelligence in the war on terror. The best tool we have in intelligence gathering is time itself.

The second case cited by Graham’s office involved the capture of Ahmed Abu Khatallah, a suspect in the 2012 attacks in Benghazi, Libya. A June 17, 2014, USA Today story cited by Graham’s office again noted some Republican opposition to plans to turn Khatallah over to U.S. courts. Graham was quoted in the story saying Khatallah ought to be held at Guantanamo “as a potential enemy combatant.”

But in the same news story, Sen. Dianne Feinstein, D-Calif., who chairs the Senate Intelligence Committee, said the goals of intelligence gathering and prosecution in federal court were not mutually exclusive.

“Past cases against terrorists like Abu Khatallah have shown that we can obtain intelligence, convict terrorists and lock them away for a very long time,” Feinstein said.

It’s true that as a matter of policy, the Obama administration has not sent any new detainees to Guantanamo. In the 2008 campaign, Obama vowed to close the controversial detention facility, claiming that it undermined national security.

In fact, the last detainee was brought to Guantanamo more than a year-and-a-half before Obama took office. That man was Abdulmalik Abdul-Jabbar, who was reported to have admitted to participating in the attack on a Kenya hotel in 2002. Although other detainees had been transferred to Guantanamo over the prior years from various secret sites, the Washington Post reported that Abdul-Jabbar was the first direct transfer to Guantanamo since 2004.

So what does the administration do with captured terrorism suspects?

In 2009, the White House created an interagency team called the High-Value Detainee Interrogation Group. HIG includes representatives from the FBI, CIA, State Department, Department of Defense and other agencies. When terrorism suspects are caught, the team is immediately deployed to put together an interrogation plan on a case-by-case basis. HIG also does research on the most effective methods of interrogation.

What happens when the U.S. wants to interrogate a suspect before reading him Miranda rights and presenting him to a court? As the Oct. 8, 2013, AP story revealed, “Instead of sending suspected terrorists to Guantanamo Bay or secret CIA ‘black’ sites for interrogation, the Obama administration is questioning terrorists for as long as it takes aboard U.S. naval vessels.”

Christopher Anders, senior legislative counsel at the American Civil Liberties Union, told us that sometimes authorities have delayed the reading of Miranda rights for several weeks, using an expansive version of emergency exemptions. (For example, Anders said, Faisal Shahzad, who was convicted for the attempted 2010 car bombing in New York City’s Times Square was held and interrogated for 13 days under the “public safety” exception to the Miranda rule.)

“We have some concerns about how those interrogations are carried out,” Anders said of interrogations aboard ships. “There has been very little disclosure about that.”

Ultimately, though, suspects captured during the Obama presidency have been turned over to the courts for prosecution. While that means a shorter interrogation process than at Guantanamo, CIA Director John Brennan has said the policy has not hampered intelligence gathering.

In an address at Harvard on Sept. 16, 2011, Brennan said that, “In the past two years alone, we have successfully interrogated several terrorism suspects who were taken into law enforcement custody and prosecuted, including Faisal Shahzad, Najibullah Zazi, David Headley, and many others. In fact, faced with the firm but fair hand of the American justice system, some of the most hardened terrorists have agreed to cooperate with the FBI, providing valuable information about al-Qa’ida’s network, safe houses, recruitment methods, and even their plots and plans.”

In his speech, Brennan countered critics who claimed the U.S. does not seek to detain and interrogate suspected terrorists, and he argued that prosecuting them in federal courts does not impede intelligence gathering.

Brennan, Sept. 16, 2011: Nevertheless, some have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them. This is absurd, and I want to take this opportunity to set the record straight.

As a former career intelligence professional, I have a profound appreciation for the value of intelligence. Intelligence disrupts terrorist plots and thwarts attacks. Intelligence saves lives. And one of our greatest sources of intelligence about al-Qa’ida, its plans, and its intentions has been the members of its network who have been taken into custody by the United States and our partners overseas.

So I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people. This is how our soldiers and counterterrorism professionals have been trained. It is reflected in our rules of engagement. And it is the clear and unambiguous policy of this administration.

Now, there has been a great deal of debate about the best way to interrogate individuals in our custody. It’s been suggested that getting terrorists to talk can be accomplished simply by withholding Miranda warnings or subjecting prisoners to so-called “enhanced interrogation techniques.” It’s also been suggested that prosecuting terrorists in our federal courts somehow impedes the collection of intelligence. A long record of experience, however, proves otherwise.

In some cases, the ACLU’s Anders said, investigators have gotten better information from detainees after they have been read their Miranda Rights. The idea that suspects clam up the minute they are read their Miranda Rights and are presented to a court “doesn’t square with the reality of what’s taking place,” he said.

Stephen Vladeck, a law professor at American University and an expert on national security law, told us via email: “It’s just not true that we’re no longer interrogating or detaining terrorists. … Each time we’ve arrested a high-value terrorism suspect overseas, they’ve been subjected to at least some sustained period of interrogation prior to their transfer to the United States for purposes of standing criminal trial. Each time that’s happened, Senator Graham has been one of the staunchest defenders of such interrogations, even as they have riled civil libertarians, who fear the government is sidestepping the ordinary rules that would apply to a domestic arrest. The fundamental shift in the Obama administration’s policy has been away from indefinite detention—a policy that necessarily produces ever-less information the longer individuals remain in custody.”

Graham is free to offer his opinion that it hurts intelligence-gathering if terrorism suspects are not subjected to indefinite interrogation at Guantanamo Bay, or that the Obama administration’s interrogations are insufficient. But it’s simply inaccurate to claim that the Obama administration doesn’t interrogate terrorism suspects at all anymore.

— Robert Farley