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111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-189

======================================================================



 
RESOLUTION OF INQUIRY REQUESTING THAT THE PRESIDENT AND DIRECTING THAT 
   THE ATTORNEY GENERAL TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL 
  INFORMATION IN THEIR POSSESSION RELATING TO SPECIFIC COMMUNICATIONS 
     REGARDING DETAINEES AND FOREIGN PERSONS SUSPECTED OF TERRORISM

                                _______
                                

  June 26, 2009.--Referred to the House Calendar ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                             ADVERSE REPORT

                             together with

                             MINORITY VIEWS

                       [To accompany H. Res. 537]

  The Committee on the Judiciary, to whom was referred the 
resolution (H. Res. 537) requesting that the President and 
directing that the Attorney General transmit to the House of 
Representatives all information in their possession relating to 
specific communications regarding detainees and foreign persons 
suspected of terrorism, having considered the same, reports 
unfavorably thereon without amendment and recommends that the 
resolution not be agreed to.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background.......................................................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     5
New Budget Authority and Tax Expenditures........................     5
Committee Cost Estimate..........................................     5
Performance Goals and Objectives.................................     6
Constitutional Authority Statement...............................     6
Advisory on Earmarks.............................................     6
Section-by-Section Analysis......................................     6
Minority Views...................................................     6

                          Purpose and Summary

    On June 11, 2009, Congressman Mike Rogers (R-MI) introduced 
H. Res. 537, a resolution of inquiry. The resolution requests 
the President, and directs the Attorney General, to transmit to 
the House of Representatives not later than 14 days after the 
date of adoption of the resolution, copies of any portions of 
all documents, records, and communications in their possession 
referring or relating to the notification of rights under 
Miranda v. Arizona, 384 U.S. 436 (1966), by the Department of 
Justice, including all component agencies, to foreign persons, 
captured in Afghanistan, who are suspected of terrorism and 
detainees in the custody of the Armed Forces of the United 
States in Afghanistan.

                               Background

                      HOUSE RESOLUTIONS OF INQUIRY

    Under the rules and precedents of the House of 
Representatives, a resolution of inquiry is one of the methods 
that the House can use to obtain information from the Executive 
Branch.\1\ It ``is a simple resolution making a direct request 
or demand of the President or the head of an executive 
department to furnish the House of Representatives with 
specific factual information in the possession of the executive 
branch.''\2\ The typical practice has been to use the verbs 
``request'' when asking for information from the President and 
``direct'' when addressing executive department heads.\3\ 
Clause 7 of Rule XIII of the Rules of the House of 
Representatives provides that if the Committee to which the 
resolution is referred does not act on it within 14 legislative 
days, a privileged motion to discharge the resolution from the 
Committee is in order on the House Floor.
---------------------------------------------------------------------------
    \1\Christopher Davis, House Resolutions of Inquiry, CRS Report, 
November 25, 2008, at 1 (quoting U.S. Congress, House, Deschler's 
Precedents of the United States House of Representatives, H. Doc. 94-
661, 94th Cong., 2nd Sess., vol. 7, ch. 24, Sec. 8.
    \2\Id.
    \3\Id.
---------------------------------------------------------------------------

                         PURPOSE OF H. RES. 537

    Following a recent fact-finding trip to Afghanistan, 
Congressman Mike Rogers claimed that the Obama Administration 
has instituted a new policy of having FBI agents provide 
Miranda rights to detainees captured and held at U.S. detention 
facilities.\4\ According to Congressman Rogers, this alleged 
policy change is creating chaos among CIA, FBI, and military 
personnel, and is raising concerns about soldiers' ability to 
pursue intelligence in the field.\5\ Congressman Rogers 
introduced H. Res. 537 to request the President and direct the 
Attorney General to produce documents pertaining to the alleged 
policy change.
---------------------------------------------------------------------------
    \4\Stephen Hayes, ``Miranda Rights for Terrorists,'' Weekly 
Standard, June 10, 2009, available at http://www.weeklystandard.com/
weblogs/TWSFP/2009/06/miranda_rights_for_terrorists. asp.
    \5\``U.S. Lawmaker Says Obama Administration Ordered FBI to Read 
Rights to Detainees,'' FoxNews.com, June 11, 2009.
---------------------------------------------------------------------------

       THE JUSTICE DEPARTMENT CONFIRMS THERE WAS NO POLICY CHANGE

    According to the Justice Department, there have been no 
changes to the policy regarding when to Mirandize terrorist 
suspects abroad. Justice Department spokesman Dean Boyd stated 
on June 11 that ``[t]here has been no policy change nor blanket 
instruction for FBI agents to Mirandize detainees overseas,'' 
adding ``[w]hile there have been specific cases in which FBI 
agents have Mirandized suspects overseas, at both Bagram and in 
other situations, in order to preserve the quality of evidence 
obtained, there has been no overall policy change with respect 
to detainees.''\6\
---------------------------------------------------------------------------
    \6\Id. In addition, on June 23, 2009, Assistant Attorney General 
for Legislative Affairs Ron Weich stated in a telephone call to 
Democratic and Republican Committee staff that there has been no policy 
change. He noted that the Department has for years had a practice of 
Mirandizing terrorist suspects only on a case-by-case basis when an 
assessment has been made that there is a possibility of prosecution in 
an Article III court, in order to enhance national security. In those 
cases, he explained, administering Miranda warnings strengthens the 
prosecution. Regarding the documents that H. Res. 537 seeks to acquire, 
Mr. Weich said that the Department has performed a review to determine 
whether there are any documents that evidence a new policy regarding 
Miranda warnings for terrorist suspects abroad, and he explained that 
they found nothing, since there is no such policy. In addition, he said 
the only documents that would be responsive to the resolution are 
individual case files on terrorist suspects, which may contain 
information regarding whether Miranda warnings were given during 
particular interrogations. According to Mr. Weich, these files have 
sensitive national security information, and their disclosure would 
also jeopardize the cases themselves.
---------------------------------------------------------------------------

              THE FBI CONFIRMS THERE WAS NO POLICY CHANGE

    In a June 12 letter to Congressman Frank Wolf, FBI Director 
Robert Mueller confirmed that ``there has been no policy change 
and no blanket instruction issued for FBI agents to Mirandize 
detainees overseas.''\7\ Director Mueller further explained 
that ``FBI agents have been trained to analyze whether Miranda 
is appropriate to use on a case-by-case basis and to consider 
providing Miranda warnings if prosecution in the United States 
may occur.''\8\ The Director noted that FBI agents have 
occasionally given Miranda warnings to persons captured 
overseas, at Bagram and elsewhere, but only when ``a 
determination was made that a prosecution in an Article III 
court may be in the interest of national security and that 
providing Miranda warnings . . . was . . . desirable to 
maximize the likelihood that any resulting statements would be 
admissible at trial.''\9\ In order to place the issue in its 
proper context, the Director explained that Miranda warnings 
have been provided to Bagram detainees only in a small number 
of cases out of over 4,000 individuals whom the FBI has been 
involved in detaining and interrogating.\10\
---------------------------------------------------------------------------
    \7\Letter from FBI Director Robert S. Mueller, III to Congressman 
Frank Wolf, June 12, 2009. A copy of the letter was also sent to 
Congressman Rogers, and was made part of the record during the 
Committee's June 24, 2009 meeting to consider the resolution.
    \8\Id.
    \9\Id.
    \10\Id. In the same letter, Director Mueller also described the so-
called ``Global Justice'' proposal, which seeks ``to have a process 
that ensures all available intelligence from the intelligence community 
is consolidated for decision makers so that they have the best 
available information when determining the strategy for handling 
certain terrorists overseas.'' He further noted that the proposal 
``would also ensure . . . that intelligence is gathered in a manner 
that best preserves future options vis-a-vis the individual terrorist 
at issue, including gathering evidence in a manner that ensures its 
integrity. . . .'' Importantly, Director Mueller explained that ``[f]ar 
from a policy change, the proposal would focus on the best way to 
manage and deploy interagency teams overseas, train the teams, and 
provide them forensic support. The proposal has never had any 
connection to changes in FBI policy on when Miranda warning[s] should 
be administered to detainees overseas.''
---------------------------------------------------------------------------
    When recently asked about the FBI's occasional provision of 
Miranda warnings, General David Petraeus, who supervises 
Afghanistan military operations as the head of U.S. Central 
Command, made clear that this does not create any problems for 
the military. He explained that ``[t]his is the FBI doing what 
the FBI does. . . . These are cases where they are looking at 
potential criminal charges. Were comfortable with this.''\11\
---------------------------------------------------------------------------
    \11\See ``Petraeus on Miranda Rights at Bagram,'' available at 
http://www.prospect.org/csnc/blogs/
tapped_archive?month=06&year=2009&base_name=petreaus_on_miranda_rights_a
t&2.
---------------------------------------------------------------------------

  THE PRACTICE OF MIRANDIZING TERRORIST SUSPECTS OCCURRED DURING THE 
                        PREVIOUS ADMINISTRATION

    The practice of sometimes administering Miranda warnings to 
terrorist suspects is not unique to the Obama 
Administration.\12\ Director Mueller's letter states that the 
practice has been occurring ``[f]or years.''\13\ Indeed, when 
the Bush Administration announced in early 2008 that it 
intended to bring capital murder charges against six men 
allegedly linked to the 9/11 terrorist attacks, it did so based 
partly on information that the men disclosed to FBI questioners 
without the use of coercive interrogation tactics and after 
having been read rights similar to a standard U.S. Miranda 
warning, while they were detained at Guantanamo Bay.\14\ The 
Obama Administration has also confirmed that Bush 
Administration officials administered Miranda warnings to 
suspects overseas in some instances.\15\
---------------------------------------------------------------------------
    \12\Josh White, Dan Eggen and Joby Warrick, ``U.S. to Try 6 On 
Capital Charges Over 9/11 Attacks: New Evidence Gained Without Coercive 
Tactics,'' Wash. Post, February 12, 2008, A1.
    \13\Letter from FBI Director Robert S. Mueller, III, to Congressman 
Frank Wolf, June 12, 2009.
    \14\Id.
    \15\See ``Obama Administration Says Some Detainees Overseas Are 
Being Mirandized--
and Bush Did It, Too,'' ABC News, June 11, 2009, available at http://
blogs.abc
news.com/politicalpunch/2009/06/obama-administration-says-some-
detainees-overseas-are-being-mirandized.html.
---------------------------------------------------------------------------

                                Hearings

    No hearings were held in the Committee on H. Res. 537.

                        Committee Consideration

    On June 24, 2009, the Committee met in open session and 
ordered H. Res. 537 adversely reported, without amendment, by a 
rollcall vote of 13 yeas to 12 nays, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall vote occurred during the Committee's 
consideration of H. Res. 537:
    H. Res. 537 was ordered reported unfavorably by a vote of 
13 to 12.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................
Mr. Pierluisi...................................................
Mr. Quigley.....................................................              X
Mr. Gutierrez...................................................              X
Mr. Sherman.....................................................
Ms. Baldwin.....................................................
Mr. Gonzalez....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................              X
Mr. Maffei......................................................              X
Mr. Smith, Ranking Member.......................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................                              X
Mr. Issa........................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Rooney......................................................
Mr. Harper......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             13              12
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

                        Committee Cost Estimate

    In compliance with clause 3(d)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee estimates that 
implementing the resolution would not result in any significant 
costs. The Congressional Budget Office did not provide a cost 
estimate for the resolution.

                    Performance Goals and Objectives

    Clause 3(c)(4) of rule XIII of the Rules of the House of 
Representatives is inapplicable, because H. Res. 537 does not 
authorize funding.

                   Constitutional Authority Statement

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives is inapplicable, because H. Res. 537 is not a 
bill or a joint resolution that may be enacted into law.

                          Advisory on Earmarks

    Clause 9 of rule XXI of the Rules of the House of 
Representatives is inapplicable, because H. Res. 537 is not a 
bill or joint resolution.

                      Section-by-Section Analysis

    H. Res. 537 requests the President, and directs the 
Attorney General, to transmit to the House of Representatives 
not later than 14 days after the date of adoption of the 
resolution, copies of any portions of all documents, records, 
and communications in their possession referring or relating to 
the notification of rights under Miranda v. Arizona, 384 U.S. 
436 (1966), by the Department of Justice, including all 
component agencies, to foreign persons, captured in 
Afghanistan, who are suspected of terrorism and detainees in 
the custody of the Armed Forces of the United States in 
Afghanistan.

                             Minority Views

    For the reasons outlined below, we strongly disagree with 
the majority's partisan decision to unfavorably report H. Res. 
537, a resolution of inquiry seeking information from the 
Administration regarding its reported new policy to 
increasingly provide Miranda warnings to terrorists detained in 
Afghanistan.
    Based on recent reports, the Administration has embarked on 
a new policy in which increasing numbers of terrorists detained 
in Afghanistan are being read Miranda warnings. These warnings, 
as developed and required by the Supreme Court,\1\ are given by 
law enforcement officers and agents to criminal defendants, and 
they generally consist of the following formulation: ``You have 
the right to remain silent. Anything you say can and will be 
used against you in a court of law. You have the right to an 
attorney present during questioning. If you cannot afford an 
attorney, one will be appointed for you. Do you understand 
these rights?'' Miranda warnings are only given when criminal 
prosecution is the goal, but our goal in the war on terrorism 
should not be the prosecution of criminals in court. It should 
be the defeat of terrorists on the battlefield.
---------------------------------------------------------------------------
    \1\See Miranda v. Arizona, 384 U.S. 436 (1966).
---------------------------------------------------------------------------

                      THE NEED FOR THE RESOLUTION

    According to multiple reports, the Administration has 
embarked on a new policy in which increasing numbers of 
terrorists detained in Afghanistan are being given Miranda 
warnings. Such a policy will have grave implications for our 
national security because it indicates an approach to the war 
on terror in which terrorists will be treated more like 
domestic criminal defendants, and less like foreign enemies 
with a military and political agenda against the United States 
as a nation. Because such a policy shift would have dramatic 
effects on America's security, the House should immediately 
take up House Resolution 537.
    This resolution of inquiry requests that the Administration 
provide all documents and communications relating to this 
reported new policy to the House of Representatives so it can 
fulfill its constitutional duty to oversee and formulate 
America's national security policies.
    During the campaign, President Obama made clear he 
preferred having prosecutors deal with terrorists like ordinary 
criminals to having our military deal with them for what they 
are: sworn enemies engaged in a war against all Americans. 
During an interview with ABC News, Obama said ``And, you know, 
let's take the example of Guantanamo. What we know is that, in 
previous terrorist attacks--for example, the first attack 
against the World Trade Center, we were able to arrest those 
responsible, put them on trial. They are currently in U.S. 
prisons, incapacitated.''\2\
---------------------------------------------------------------------------
    \2\``Transcript: Jake Tapper Interviews Barack Obama,'' ABC News 
(June 16, 2008).
---------------------------------------------------------------------------
    However, the bipartisan 9/11 Commission firmly and 
unanimously rejected that approach, stating in its report that 
``The law enforcement process is concerned with proving the 
guilt of persons apprehended and charged . . . It was not 
designed to ask if the events might be harbingers of worse to 
come.''\3\ Indeed, the criminal-prosecution approach employed 
prior to 9/11 was an abject failure. During the eight years 
prior to 9/11, even with the highest conceivable conviction 
rate of 100 percent, fewer than three dozen terrorists were 
neutralized through successful prosecution.\4\ Even worse, 
trials in the criminal justice system inevitably caused more 
terrorism by increasing opportunities for terrorist propaganda, 
leaving too many militants in place, and divulging too much 
information in court that tipped off other terrorists and 
allowed them to evade capture.\5\
---------------------------------------------------------------------------
    \3\The 9/11 Commission Report, at 73.
    \4\Andrew C. McCarthy and Alykhan Velshi, ``We Need a National 
Security Court'' (The American Enterprise Institute 2007) at 6, 9. 
Terrorism trials take months to complete, often following many years of 
pretrial discovery and court proceedings. Typically, the appeals also 
take years to complete. See id. at 6 n.9.
    \5\See id.
---------------------------------------------------------------------------
    The Obama Administration's first foray back toward the 
criminal prosecution approach to terrorism has already resulted 
in a sweetheart deal for Ali Saleh Kahlah al-Marri, who 
admitted to plotting attacks with cyanide gas at U.S. dams, 
waterways, and tunnels.\6\ That hard-core terrorist, who was an 
al-Qaeda member since 1998, copped a plea in which he stands to 
receive, at most, only 15 years in prison.\7\ As retired 
Commander Kirk Lippold points out, that's ``the same sentence 
as a person tried for identity theft or fraud.''\8\
---------------------------------------------------------------------------
    \6\Carrie Johnson, ``Marri Admits Conspiring with Al-Qaeda 
Operatives; Faces Up to 15 Years,'' The Washington Post (May 1, 2009).
    \7\Andrew McCarthy, ``Sweetheart Deal for a Terrorist,'' National 
Review Online (May 5, 2009).
    \8\Carrie Johnson, ``Marri Admits Conspiring with Al-Qaeda 
Operatives; Faces Up to 15 Years,'' The Washington Post (May 1, 2009).
---------------------------------------------------------------------------
    That maximum 15-year sentence is especially absurd when we 
recall that the lowest-level member of ``Blind Sheikh'' 
Rahman's cell--which bombed the World Trade Center in 1993--
received 25 years in prison.\9\ That low-level terrorist 
received a 25-year sentence when he had been recruited by the 
cell only at the very end of attack preparations and 
transported gasoline to a bomb-construction safehouse.\10\ That 
25-year sentence for a low-level terrorist reflects a depth of 
resolve against terrorism that the more recent 15-year sentence 
against a hard-core terrorist does not.
---------------------------------------------------------------------------
    \9\Andrew McCarthy, ``Sweetheart Deal for a Terrorist,'' National 
Review Online (May 5, 2009).
    \10\Andrew McCarthy, ``Sweetheart Deal for a Terrorist,'' National 
Review Online (May 5, 2009).
---------------------------------------------------------------------------
    More recently, the Attorney General announced in May that 
the Justice Department would be prosecuting known terrorist 
Ahmed Ghailani in federal court.\11\ That prosecution is based 
on a March 12, 2001, indictment for terrorism conducted prior 
to 9/11.\12\ Since then, Ghailani roamed free and served al-
Qaeda as a document forger, trainer at a terrorist camp, and 
bodyguard for Osama bin Laden until he was captured by the U.S. 
military in July, 2004.\13\ The Ghailani prosecution is an 
exercise in looking backward, not forward. But only by looking 
forward can we prevent the next attack.
---------------------------------------------------------------------------
    \11\http://www.usdoj.gov/opa/pr/2009/May/09-nsd-494.html.
    \12\http://www.usdoj.gov/opa/pr/2009/May/09-nsd-494.html.
    \13\Charles D. Stimson, ``First--and Perhaps Last--Gitmo Inmate 
Brought to America,'' The Heritage Foundation (June 13, 2009), 
available at http://www.heritage.org/Press/Commentary/ed061209c.cfm.
---------------------------------------------------------------------------
    We're all familiar with the Miranda warnings from numerous 
television shows. Miranda warnings, spelling out the 
constitutional rights to which Americans are entitled, are only 
given when criminal prosecution is the goal. Our goal in the 
war on terrorism should not be the prosecution of criminals in 
court, but rather it should be the defeat of terrorists on the 
battlefield far from America. Now comes word that the Obama 
Administration is increasingly providing Miranda warnings to 
captured terrorists, a clear indication it's intending to 
pursue more civil justice in the courtroom against America's 
enemies, and less military justice in the war on terror.
    Before President Obama assumed office, the U.S. already 
granted enemy combatants more procedural rights than had ever 
been granted before by any nation in the history of the world. 
Now President Obama wants to extend to known terrorists the 
full gamut of constitutional rights afforded criminal 
defendants on trial in the U.S.
    President Obama's own Solicitor General, Elena Kagan, filed 
a legal brief opposing a court's authority to order foreign 
terrorists released in this country.\14\ In it, she repeatedly 
recognizes ``the critical distinction'' the Supreme Court has 
drawn ``between an alien who has effected an entry into the 
United States and one who has never entered.''\15\ Indeed, 
Solicitor General Kagan cautioned the Supreme Court not to 
``blur the previously clear distinction between aliens outside 
the United States and aliens inside this country or at its 
borders.''\16\ ``This basic distinction,'' she continued, 
``serves as the framework on which our immigration laws are 
structured, and repeatedly has been recognized as significant 
not just under the Constitution but also as a matter of 
statutory and treaty law.''\17\ By bringing more terrorists 
onto U.S. soil, even for purposes of prosecuting them, the 
President risks granting them even more constitutional rights, 
by his Solicitor General's own admission.
---------------------------------------------------------------------------
    \14\See Andrew McCarthy, ``Justice Denies the Uighers . . . For 
Now,'' National Review (June 2, 2009).
    \15\Id.
    \16\Id.
    \17\Id.
---------------------------------------------------------------------------
    That the Administration may be planning on bringing more 
terrorists to the U.S. was indicated to Rep. Mike Rogers of 
Michigan.\18\ Rep. Rogers is a former special agent of the 
Federal Bureau of Investigation and U.S. Army officer and now a 
senior Republican on the House Permanent Select Committee on 
Intelligence. He recently traveled to Afghanistan on a fact-
finding trip, and what he heard from officials there startled 
him. He said he was told there that ``The administration has 
decided to change the focus to law enforcement . . . You have 
foreign fighters who are targeting U.S. troops today--foreign 
fighters who go to another country to kill Americans. We 
capture them . . . and [we]'re reading them their rights--
Mirandizing these foreign fighters.''\19\ And once terrorists 
are given the right to remain silent, of course, they do just 
that. The result is no interrogations, no information, and more 
attacks.
---------------------------------------------------------------------------
    \18\``Resolution: Are Terrorist Suspects Mirandized?'' Office of 
Rep. Mike Rogers (R-MI) (June 12, 2009).
    \19\See Stephen F. Hayes, ``Miranda Rights for Terrorists,'' Weekly 
Standard Blog (June 10, 2009), available at http://
www.weeklystandard.com/weblogs/TWSFP/2009/06/miranda_rights_ 
for_terrorists.asp.
---------------------------------------------------------------------------
    Just ask 9/11 mastermind Khalid Sheikh Mohammad. When he 
was captured in 2003, he was not cooperative. According to 
President Clinton's CIA Director, George Tenet, he said ``I'll 
talk to you guys after I get to New York and see my 
lawyer.''\20\ But no one read him any Miranda rights, and 
instead his interrogation went forward, whether or not he 
wanted it to. As a result, Director Tenet said the information 
we obtained from him saved lives and helped defeat al-
Qaeda.\21\ President Obama's Director of National Intelligence, 
Admiral Dennis Blair, confirmed these facts recently when he 
wrote in an April 16, 2009, unclassified internal memo to 
employees of the Central Intelligence Agency that ``High value 
information came from interrogations in which those [enhanced 
interrogation] methods were used and provided a deeper 
understanding of the al Qa'ida organization that was attacking 
this country.''
---------------------------------------------------------------------------
    \20\Id.
    \21\Id.
---------------------------------------------------------------------------
    As Director Tenet wrote in his memoirs, ``I believe none of 
these successes would have happened if we had had to treat 
[this terrorist] like a white-collar criminal--read him his 
Miranda rights and get him a lawyer who surely would have 
insisted that his client simply shut up.''\22\
---------------------------------------------------------------------------
    \22\Id.
---------------------------------------------------------------------------
    The Justice Department claims that there has been no recent 
change in overall policy, but several of the individuals 
responsible for conducting the interrogations of detainees told 
Rep. Rogers that a ``change of policy'' is exactly what has 
occurred.\23\
---------------------------------------------------------------------------
    \23\See Stephen Hayes, ``You Have the Right to Remain Silent . . 
.'' The Weekly Standard (June 22, 2009).
---------------------------------------------------------------------------
    We are aware of one situation in which the previous 
Administration gave Miranda warnings to a high-level detainee, 
but those warnings were given under unique circumstances in 
which a female detainee who is married to Khalid Sheikh 
Mohammad's nephew was waiting to be interrogated by FBI 
officials in Afghanistan, and then she grabbed the rifle of an 
army warrant officer and attempted to shoot and kill her 
captors. It was after this crime that she was read her Miranda 
rights. She was not read her rights after her initial 
detention, but only after she committed the subsequent crime of 
attempted murder at a U.S. detention facility.\24\
---------------------------------------------------------------------------
    \24\See Stephen Hayes, ``Obama Justice Department Hoes Silent on 
Miranda,'' Weekly Standard Blog (June 12, 2009).
---------------------------------------------------------------------------
    Apparently, the increased use of Miranda warnings for 
terrorists by the Obama Administration is in fact part of a new 
policy the Los Angeles Times described in May. According to 
that report, ``The FBI and Justice Department plan to 
significantly expand their role in global counter-terrorism 
operations, part of a U.S. policy shift that will replace a 
CIA-dominated system of clandestine detentions and 
interrogations with one built around transparent investigations 
and prosecutions. Under the `global justice' initiative, which 
has been in the works for several months, FBI agents will have 
a central role in overseas counter-terrorism cases [and] expand 
their questioning of suspects. . . .''\25\
---------------------------------------------------------------------------
    \25\Josh Meyer, ``FBI Planning a Bigger Role in Terrorism Fight,'' 
The Los Angeles Times (May 28, 2009).
---------------------------------------------------------------------------
    The reports that detainees are increasingly being told of a 
right to remain silent is disturbing not only for its policy 
implications, but also because it appears to violate one of 
President Obama's own policy statements. In a ``60 Minutes'' 
interview aired in March, Obama said ``Now, do these 
[detainees] deserve Miranda rights? Do they deserve to be 
treated like a shoplifter down the block? Of course not.''\26\
---------------------------------------------------------------------------
    \26\See video clip here: http://www.realclearpolitics.com/video/
2009/06/10/flashback_obama_ 
says_detainees_dont_deserve_miranda_rights.html.
---------------------------------------------------------------------------
    Even Attorney General Eric Holder once recognized the need 
to be able to detain and interrogate terrorists outside the 
normal process of criminal prosecution, going so far as to say 
that terrorists are not even entitled to prisoner-of-war 
protections under the Geneva Conventions. In an interview on 
CNN in January 2002, Mr. Holder said, rightly in our view, 
that:

        One of the things we clearly want to do with these 
        prisoners is to have an ability to interrogate them and 
        find out what their future plans might be, where other 
        cells are located; under the Geneva Convention you are 
        really limited in the amount of information that you 
        can elicit from people . . . If, for instance, Mohamed 
        Atta had survived the attack on the World Trade Center, 
        would we now be calling him a prisoner of war? I think 
        not.\27\
---------------------------------------------------------------------------
    \27\See ``2002 Video Flashback--Eric Holder: Terrorist Detainees 
Don't Fall Under Geneva Conventions,'' available at http://
newsbusters.org/blogs/kerry-picket (also featuring video of Holder 
interview).

    It now appears, however, that the President and the 
Attorney General may be going well beyond considering 
terrorists captured on the battlefield prisoners of war by 
contemplating their detention in U.S. prisons as criminal 
defendants. With any increased reliance on criminal trials in 
the war on terror comes the detention of more terrorists in 
U.S. prisons and jails. Even Robert Mueller, the Director of 
the FBI, is concerned about that prospect. As the Associated 
Press reported, when one member of this committee ``prodded 
Mueller to agree that [terrorists] could be safely kept in 
maximum security prisons in the United States . . . Mueller 
balked at [the] suggestion, noting that in some instances 
imprisoned gang leaders have run their operations from inside 
prisons.''\28\
---------------------------------------------------------------------------
    \28\``FBI Director Concerned About Gitmo Releases,'' The Associated 
Press (May 21, 2009).
---------------------------------------------------------------------------
    The Senate Majority Leader, Harry Reid, has echoed Director 
Mueller's concerns. When asked whether he believed prisoners 
should ever be transferred into an American prison, he said, 
``Not in the United States.''\29\
---------------------------------------------------------------------------
    \29\Emily Pierce, ``Reid Says Gitmo Prisoners Will Not Be 
Transferred to U.S.,'' Roll Call (May 19, 2009).
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    We must assure the American people that the United States 
is not starting to treat sworn foreign enemies of America who 
are waging a war against us as common criminals who are due to 
be informed of their Miranda rights. And the only way to do 
that is to support this resolution of inquiry so that Congress 
can review and evaluate the Administration's approach to how to 
treat our enemies and have a debate over that approach and 
change it if warranted. Our constitutional obligations require 
nothing less.
    This resolution simply requests that the Administration 
produce to the House of Representatives documents and 
communications regarding any policy of notification of Miranda 
rights by the Department of Justice to both foreign persons 
captured in Afghanistan who are suspected of terrorism and to 
detainees in the custody of U.S. armed forces in Afghanistan. 
Securing the production of these documents is the least we can 
do to provide both the transparency the Obama Administration 
claims to support and the information the American people and 
their elected representatives deserve.

                                   Lamar Smith.
                                   F. James Sensenbrenner, Jr.
                                   Howard Coble.
                                   Elton Gallegly.
                                   Bob Goodlatte.
                                   Daniel E. Lungren.
                                   Darrell E. Issa.
                                   J. Randy Forbes.
                                   Steve King.
                                   Trent Franks.
                                   Louie Gohmert.
                                   Jim Jordan.
                                   Ted Poe.
                                   Jason Chaffetz.
                                   Tom Rooney.
                                   Gregg Harper.