Joe Klein frets over Umar Abdulmutallab being read his Miranda rights:

In the Washington Post today, former CIA director Mike Hayden has a column lamenting the fact that the Undiebomber was read his Miranda rights after only 50 minutes of negotiation. He is absolutely right: the bomber is an enemy combatant. He doesn’t have Miranda rights. It is entirely possible that we lost valuable intelligence as a result of this stupidity. We don’t torture anymore and that is good. The notion that we don’t even properly interrogate those who attack us seems unbelievable.

What’s remarkable here is that Hayden’s op-ed, which makes many faulty assumptions, is a transparent attempt to shield the CIA from criticism on the issue of torture on the eve of that Justice Department report being released:

Intelligence officers need to know that someone has their back. After the Justice memos were released in April, CIA officers began to ask whether the people doing things that were currently authorized would be dragged through this kind of public knothole in five years. No one could guarantee that they would not.

Indeed, as Spencer Ackerman has pointed out, no one has asked why the Justice Department lawyers who exposed intelligence officials to potential prosecution by rubber-stamped blatantly illegal behavior why they “didn’t have the CIA’s back.”

So, aside from the fact that Hayden has an agenda that Klein is unconcerned with — mobilizing public support against accountability for torture — there’s also much in the op-ed that is inaccurate.

First off, Abdulmutallab was read his rights after he stopped talking, not before, because there’s an exception in Miranda for public emergencies. This was apparently done after a conference call with several law enforcement and intelligence officials. He can still be interrogated without his lawyer present if there’s no intention to use the fruits of that interrogation in court.

Second, I would argue Abdulmutallab is not an “enemy combatant.” He was not captured on a battlefield in Afghanistan, Iraq, or any other place where there is an ongoing military conflict, where military detention would be appropriate. He is a criminal.

Third, Hayden’s assertion that “enemy combatants” aren’t allowed constitutional protections is not only wrong, it also suggests that Abdulmutallab doesn’t deserve due process rights because he isn’t a U.S. citizen. Foreigners on American soil accused of crimes have always been granted the same rights as “American citizens.” As Glenn Greenwald pointed out yesterday, the Constitution makes distinctions between “citizens” and “persons” and applies due process rights to the latter. The precedent for giving foreigners constitutional rights in criminal proceedings goes as far back as 1886.

Fourth, several individuals accused of being terrorists have given valuable intelligence information after being mirandized, including David Headley, who is reportedly connected to the Mumbai attack, and Brent Vinas, who was captured in Pakistan two years ago by the Bush administration. Why didn’t Hayden speak up then, when he was director of the CIA? Wasn’t the nation in danger? Vinas has reportedly provided a “treasure trove” of information against al-Qaeda. Mirandizing, contra Klein and Hayden, does not preclude intelligence collection.

Fifth, Hayden complains about trying Khalid Sheikh Mohammed and the alleged 9/11 conspirators in civilian court. But the military commissions are inefficient at convicting terrorists (only three have ever secured a conviction over the past eight years, compared to more than a hundred in civilian courts) and they are still vulnerable to constitutional challenge, so the quickest and most efficient way to ensure Abdulmutallab spends a long time in jail is to charge him in civilian court, where the conviction rate in terrorism cases is at an astronomical 91 percent. Moreover, a choice of venue determined by presumed guilt rather than circumstances of capture precludes the notion of due process.

Sixth, al-Qaeda usually doesn’t send its crack operatives on operations like this. It sends the lunch money kids, and it’s been clear from the beginning that Abdulmutallab was one of those. (Although I’m sure he’d prefer “tip of the al-Qaeda spear” as Hayden refers to him.) It’s not exactly great PR for the U.S. to be so scared of a disturbed, murderous, but ultimately feckless individual that we need to try him in an alternate justice system in courtroom full of people wearing military uniforms. As Steve Simon has pointed out, such images have a certain negative resonance, particularly in the Middle East.

Seventh, this is how the Bush administration handled most domestic terrorism cases, the ones that weren’t international embarrassments, and there was absolutely zero outrage, because Republicans weren’t interested in scoring political points on a president from their own party.

Look, I realize that Klein may not have the “time or legal background” to correct Hayden’s assertions. But for someone who just last week expressed anger about the uninformed and ignorant public, he doesn’t seem to be very concerned with ensuring that they are in fact, informed on this particular issue, preferring instead to briskly endorse the unqualified claims of stakeholders.

— A. Serwer