As Lindh's defense attorneys detailed in motions this week to suppress his statements, he was successively interrogated under circumstances that seem more than a little bit coercive by several military personnel and an FBI agent during the 10 days beginning last December 1, when Northern Alliance troops handed him over to American forces. Traumatized, sleep-deprived, cold, hungry, drugged, and in pain from a bullet in his leg, Lindh was initially fearful he would be sent back to Northern Alliance forces to be tortured and killed. Later he was stripped naked, blindfolded, and duct-taped tightly for two days to a stretcher in a closed, unheated metal shipping container. He says he asked for a lawyer only to be told that none was available—even though his parents (unbeknownst to him) had retained a lawyer who was clamoring for access to him.
Lindh's attorneys argue cogently that using statements elicited under such circumstances to convict him would violate various Supreme Court precedents, including those that bar the use of coerced confessions and statements made without benefit of "Miranda warnings" or after the suspect had requested a lawyer. While the government disputes this argument, it seems likely that the courts would suppress Lindh's statements if this were an ordinary criminal case.
But this is not an ordinary criminal case. This is war. Wouldn't it be crazy to require our military forces to give kid-glove treatment to enemy combatants and terrorists? To recite Miranda warnings to enemies the moment they surrender? To cease all interrogation the moment they ask for lawyers?
Of course that would be crazy. The military and the government should have a very free hand (short of torture) to squeeze prisoners such as Lindh hard for any intelligence that might help prevent future attacks. But when the interrogators are trying less to prevent future attacks than to elicit incriminating statements, they should abide by the same rules that govern other criminal prosecutions. And the evidence suggests strongly that at least by the time the FBI interrogator grilled Lindh on December 9 and 10, the main objective was to set the stage for prosecution. While it might be unwise for courts to try to parse the motives of those who interrogated Lindh over a 10-day period, it would be an abdication of judicial responsibility to pretend that there was nothing coercive about any of these interrogations.
The Lindh prosecution thus presents the courts with two unattractive alternatives. To allow his statements into evidence would do violence to long-settled constitutional rules. But to exclude those statements might make it harder for the government to wring information about planned terrorist attacks out of other detainees.
In theory, the courts could bar the admission of evidence obtained through coercive interrogation without casting doubt on the constitutionality of using such techniques to seek information about planned terrorist attacks. But some of the Supreme Court precedents that bar use of coerced confessions in criminal trials have suggested (wrongly, in my view) that coercive interrogation is itself unconstitutional, no matter what the purpose. The justices have agreed to revisit that issue in a case to be argued this autumn, Chavez v. Martinez. But at this juncture, the government's effort to use arguably coerced admissions in the Lindh prosecution could backfire by provoking a decision condemning all coercive interrogation of suspected enemy combatants.