Sunday brought the welcome news that another Taliban leader was captured by Pakistani authorities in Karachi. Initial reports were that it was the infamous Adam Gadahn, who was born and raised in California but then joined the Taliban, for whom he has acted as a taunting mouthpiece from somewhere in Pakistan, urging terrorist attacks on Americans. Subsequent reports said that it was not Gadahn but another U.S.-born Taliban leader who goes by the name Abu Yahya.
Whoever it is the Pakistanis have captured, the Obama administration will soon likely face an important decision, because the captive appears to be an American citizen. If the Pakistanis hand him over to the U.S., or even just give the U.S. access to him while he remains in their custody, the administration will need to decide whether to treat him as a criminal suspect or an enemy combatant (or “enemy belligerent,” as the administration refers to them). Gadahn was indicted during the Bush administration on charges of treason, which is a criminal offense, but he can nonetheless be treated as an enemy combatant. Khalid Sheikh Mohammed, for instance, was indicted on criminal charges in the 1990s but has been held for years at Guantanamo as an enemy combatant.
The Obama administration will face the same choice they did with the Christmas bomber, Umar Farouk Abdulmutallab — Mirandize him and treat him like a criminal suspect, or don’t Mirandize him and begin interrogating him and without the right to an attorney during questioning.
The legal authority to take the latter course is beyond doubt. The Supreme Court ruled in 2004 that a U.S. citizen captured on an overseas battlefield may lawfully be treated as an enemy combatant. Attorney General Eric Holder and White House adviser John Brennan cannot claim here, as they did with Abdulmutallab (who is not a U.S. citizen but was captured on U.S. soil), that the authority to do this is unclear so the better course is the civilian process. The administration is perfectly within its power to hold and interrogate an American Taliban leader captured in Pakistan as an enemy combatant, and they know it.
So there are no excuses this time (though there were no good ones for Abdulmutallab either). The captive should be designated as an enemy combatant and interrogated without Miranda warnings. A Taliban commander could be a treasure trove of valuable intelligence on the enemy’s plans in Afghanistan, Pakistan, and the U.S. This intelligence could save the lives of our troops, our citizens, and our allies. It would be absolute folly to tell him he has a right to remain silent, get him a lawyer, and ask him and his lawyer if he might be willing to talk to us at some point in exchange for leniency. It would be nuts to wait five weeks to find out whether his family might persuade him to talk.
Nothing prevents the administration from treating the captive as a criminal defendant — and trying him in civilian court — later on, after he has been interrogated as an enemy combatant. But if the administration goes the Miranda route from the start, they will be needlessly hamstringing themselves. It’s time to put intelligence gathering ahead of the “rights” of those who wage war on us.
— Bill Burck is a former federal prosecutor and deputy counsel to Pres. George W. Bush. Dana M. Perino is former press secretary to President Bush.