Umar Farouk Abdulmutallab

This isn’t the first time conservatives have expressed concern over the possibility of Miranda rights for accused terrorists. After the Obama administration announced that some detainees from Guantánamo Bay would be brought to the U.S. to stand trial, Rush Limbaugh seized on that theme. He even played civil libertarian, saying:

Now, think about something here. There are going to be a lot of precedents set in this trial. For example, let’s just look at Miranda. Right now, every suspect has to be read his rights and is told he doesn’t have to say a word, that he can get a lawyer.

But if he says something, it can be used against him. Now, if these clowns, if these terrorists are convicted without having been Mirandized, what does that precedent set? If he can be convicted without being Mirandized, if he didn’t get his habeas corpus rights, can’t they then be denied to us in the future, under this precedent? Well, but they’re being given every constitutional protection as though they were citizens. See, this is the point. They get Mirandized, or they don’t get Mirandized, and they get convicted. So a precedent is set that suspects do not need to be Mirandized and they can still be found guilty. Okay, so then you end up in the court system, and they don’t Mirandize you, and you say, “Wait a minute, I wasn’t Mirandized!”

This whole worry is rather silly; it stems from a misunderstanding of the basic principles underlying the Miranda warnings. The part of those warnings that’s relevant here deals purely with the right against self-incrimination; it stems from the portion of the Fifth Amendment that reads, “No person shall … be compelled in any criminal case to be a witness against himself.” The typical Miranda warning similarly specifies, “You have the right to remain silent. Anything you say or do can and will be used against you in a court of law.” (My emphasis.)

All this is intended to prevent people from involuntarily testifying against themselves in a criminal trial. If law enforcement doesn’t care about using a suspect’s statements in court, they can interrogate that person without ever reading them their rights; they just can’t use any incriminating information at that person’s trial. Moreover, again, it’s a right against self-incrimination — if a suspected terrorist gives up information about fellow conspirators before being properly Mirandized, that information is admissible.

So what does this mean for Abdulmutallab? Well, it means that — assuming prosecutors are satisfied with the array of charges currently available — law enforcement would technically never even have to Mirandize him. They don’t need a confession in order to convict him; he already pretty well incriminated himself by trying to blow up his crotch in front of a bunch of witnesses.

There’s another flaw in the logic used by Goldfarb, Limbaugh and others. The Miranda warnings inform someone of his or her rights, no more — interrogation doesn’t magically stop at that point. The person in custody still has to exercise those rights. And in this case, it appears that Abdulmutallab has already started talking about some associates.

Little details like that haven’t stopped the critics, especially as they’ve focused on the fact that Abdulmutallab was read his Miranda rights and allegedly stopped cooperating immediately afterwards. (In fact, Abdulmutallab was reportedly only Mirandized after he’d stopped talking.)

The White House has been fighting back, though, and as part of that effort, on Tuesday administration officials told reporters that Abdulmutallab has begun cooperating again. Methods softer than those the right would prefer were employed: Rather than waterboarding him, authorities brought some of Abdulmutallab’s family to the U.S. and allowed him to see them.

Sen. Kit Bond, R-Mo., the ranking member of the Senate Intelligence Committee, wasn’t happy about that public disclosure. In a scathing letter to President Obama, Bond wrote, “This information immediately hit the air waves globally and, no doubt, reached the ears of our enemies abroad.” He added that the news “has no doubt been helpful to his terrorist cohorts around the world” and said, “Consider the consequences of publicly disseminating sensitive information vital to the defense of the American people. I do not believe the American people want this information jeopardized to further political arguments.”

Bond does have one legitimate point in that he says members of Congress briefed on Abdulmutallab’s cooperation were initially told that it was important that fact a secret. But the information essentially came out anyway during Senate hearings this week, and that led to the administration’s decision to brief reporters.

Moreover, Bond has to know that he and his fellow Republicans aren’t blameless here. They can’t seriously expect to be able to take potshots at the administration’s handling of terror cases without prompting some sort of response — once you’ve started politicizing the issue, it’s hard to call for that politicization to stop. If the GOP’s worried about the consequences of that, it might want to take a hard look at its criticism of the way Obama’s handling terrorism and decide what are actually legitimate points that need to be raised and what’s just political grandstanding; all too often, it seems, the focus is much more on the latter.

Update: At his briefing on Thursday, White House Press Secretary Robert Gibbs called on Bond to apologize, saying, “The notion that somehow the White House, in conjunction with agencies involved in this interrogation, gave out classified information? I think an apology on that is owed, because it’s not true.”

Bond wasn’t having any of it, saying in a statement, “After telling me to keep my mouth shut, the White House discloses sensitive information in an effort to defend a dangerous and unpopular decision to Mirandize Abdulmutallab and I’m supposed to apologize?”

Separately, on his blog, Andrew Sullivan’s posted a letter from a reader who argues that Reid and Abdulmutallab shouldn’t have been Mirandized because it simply wasn’t necessary in their cases. We can debate procedure, but the letter’s worth reading if only because it’s a good, succinct explanation of the way Miranda works.

What a lot of people don’t understand — certainly what gets missed when people like Rush Limbaugh start worrying about hypothetically reading Osama bin Laden his rights — is that the right at issue is about self-incrimination. In short, if you’ve already given the goverment all it needs to convict you by, say, trying to blow yourself up in front of a plane full of witnesses, then the police can talk to you indefinitely without ever Mirandizing you; they just can’t use what you say during that interrogation against you in court. They can, however, still use it to investigate others, and potentially to prosecute them, though that depends on other circumstances as well.