Hearing on Terror Suspect Explores Miranda Warning

The New York Times on December 12, 2011 released the following:

“By BENJAMIN WEISER

Almost two years ago, a Federal Bureau of Investigation agent was in Nigeria to question an Eritrean man who was in custody on suspicion of supporting terrorism. The suspect, Mohamed Ibrahim Ahmed, had already been interrogated by other American officials for intelligence-gathering purposes, without having been read his rights.

The F.B.I. agent was there for a different purpose: a “clean” interrogation. He would apprise Mr. Ahmed of his Miranda rights — including the right to remain silent and to have counsel — and then interview him, in hopes of winning a confession that could be used in a prosecution in civilian court.

But suppose the suspect, who was also known as Talha, refused to waive his rights and answer questions? The agent proposed an idea in an e-mail to his colleagues and to prosecutors.

“We’ve planned that in the event that T does not waive his rights, we could continue as another ‘dirty’ interview,” the agent wrote in an e-mail at 11:54 a.m. on Jan. 3, 2010.

In the debate over using civilian trials for terrorists, one of the key issues — the ability to first question a suspect to gain critical intelligence on terrorist cells or plots and still pursue a criminal prosecution — is getting an early test in Mr. Ahmed’s case in Federal District Court in Manhattan.

Lawyers for Mr. Ahmed have asked a judge to suppress statements that the United States government has said he made after waiving his Miranda rights and being interrogated by the F.B.I. in Nigeria. They claim that any such waiver was not voluntary and thus any statements he made are inadmissible.

The hearing on the defense motion, which began on Thursday, has provided an unusually revealing look at how American officials are carefully navigating through a kind of hybrid version of Miranda, first trying to get intelligence through “dirty,” or un-Mirandized, interviews and then having different “clean team” interrogators read the same suspects their rights in the hopes that they will waive them and continue to talk.

One issue is how much distance American officials kept between the “dirty” and “clean” interviews, and whether the line between the two was blurred, possibly tainting any waiver of his rights.

Mr. Ahmed, 37, who has been living in Sweden, has since been indicted in Manhattan on charges that include providing material support to Al Shabab, a terrorist group based in Somalia. The indictment says that Mr. Ahmed received jihad training and bomb-making instruction in Shabab military camps in Somalia in 2009, and that when he was taken into custody in Nigeria in November 2009 on an immigration violation, he was found with bomb-making documents.

His interrogations, first by the Nigerians, then by unspecified American officials for intelligence purposes, and finally by the F.B.I. “clean team” agents, took place over the next few months, according to court testimony and statements by a prosecutor.

He was finally sent to Manhattan for arraignment in March 2010.

The agent’s e-mail referring to a “dirty” interview is not public. But as the suppression hearing began last Thursday, the judge, P. Kevin Castel, directed that a prosecutor read parts of the e-mail into the record during a discussion about how much of it could be made available to Mr. Ahmed’s defense lawyers.

The prosecutor, Jocelyn E. Strauber, said that by “dirty,” the F.B.I. agent was simply referring to an un-Mirandized interview.

In describing the Jan. 3, 2010, e-mail, Ms. Strauber explained to the judge that its author, Special Agent Maged Sidaros, was engaging in an internal discussion with other F.B.I. personnel and federal prosecutors, presumably in Manhattan, about “the possibility of a different kind of interview should his interview not proceed as planned.”

She also read briefly from an earlier e-mail from the agent, in which there appear to be questions about whether he is to participate in a Mirandized or un-Mirandized interview.

“We discussed the fact that Jim and I were of the impression that we were the ‘dirty’ team,” he wrote, according to what Ms. Strauber read in court. Then subsequent clean team interviews “would be conducted by others,” the agent added.

Ms. Strauber noted that when Agent Sidaros arrived in Nigeria, he received a summary of the statements Mr. Ahmed had made to Nigerian officials, but was given only scant information about the un-Mirandized interview of Mr. Ahmed by the Americans, which occurred on Dec. 31, 2009.

“Just the fact that it occurred, that it took about three hours, and who participated in it, at least on the U.S. side,” Ms. Strauber said.

The agent would testify, she said, that he specifically requested that the Mirandized interviews be conducted “in a different place, involve different people, and be spaced apart in time from the Dec. 31 interview.”

The spacing had been about five days, she added, and Judge Castel indicated that he wanted an even more precise time. “I may need to know what time on Dec. 31 it ended,” he said.

Prosecutors declined to comment, as did Mr. Ahmed’s lawyers and the F.B.I.”

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Douglas McNabb – McNabb Associates, P.C.’s
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