Markup of H.Res. 537, Requesting that the President and Directing that the Attorney General Transmit to the House of Representatives All Information in their Possession Relating to Specific Communications Regarding Detainees...

By:  Adam Schiff
Date: June 24, 2009
Location: Washington, DC


Markup of H.Res. 537, Requesting that the President and Directing that the Attorney General Transmit to the House of Representatives All Information in their Possession Relating to Specific Communications Regarding Detainees and Foreign Persons Suspected of Terrorism

Mr. Schiff. I do want to address the underlying issue and the effort that is being made in the Minority through this motion and through others on the floor and in other committees to prevent the giving of Miranda warnings under any circumstance to terrorists captured overseas. And I have two concerns on the broader issue and then on this resolution as well. The first is that the courts of appeals have held in cases that without giving a Miranda-type warning -- and, again, we are not talking about Miranda warnings in precisely the same form that we have in the United States -- but without giving some warning that demonstrates that the statements that are going to be made are voluntary, it may preclude their use in a criminal prosecution.
Now, I would think and expect that the circumstances in which our Armed Forces or FBI would be giving Miranda warnings to foreign nationals overseas would be exceedingly rare, and from what we understand from the Justice Department, they are rare. Much as, however, the Minority would like to posit this as an Obama administration policy, it began under the Bush administration and began for the reason that we didn't want to preclude prosecution of terrorists in the United States. And the natural impact of what my friends in the Minority would have us do is basically immunize people from prosecution in the United States, immunize any statements that they make. We have to allow some discretion for our agents overseas in appropriate cases to give warnings that make sure that the statements that people give can be used against them in a prosecution. We just can't preclude that. And again, it should be rare. It is, in fact, rare, but we shouldn't forbid it under every circumstance, unless we are just going to say we never want to bring these people to justice. I don't think that should be where we are.

Mr. Smith. Would the gentleman yield?

Mr. Schiff. If I can make one more comment, and then I will be happy to, and that is the second point in terms of this privileged resolution today. And that is we understand from the Justice Department that the only information that this would really apply to since there is no new policy or no change in policy is individual case files of terrorism suspects, when Miranda-type warnings have been given and when they haven't, which involve very sensitive information. And they are concerned, and quite rightly so, that disclosure of where these warnings may have been given could jeopardize the cases themselves, and that is a more particularized concern with this request. But again, on the broader issue, I don't think we should preclude ourselves from prosecuting foreign terrorism suspects and using their own words against them in those prosecutions. And if we take too much of an overbroad approach to this issue, we may preclude exactly that. I would be happy to yield to my colleague.

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Mr. Schiff. Reclaiming my time. The gentleman is correct. As I prefaced in my initial remarks, I am addressing not only the privileged resolution before us, but the broader attempt on the House floor and other committees to actually prohibit the giving of Miranda warnings. But the other reservation still very much obtains to the motion before us, and that is that it would involve revealing sensitive data about very specific cases that the Justice Department feels could jeopardize those cases, and for that reason I have additional concern. Mr. Lungren. Would the gentleman yield? Mr. Schiff. Yes. Mr. Lungren. Is there a way for us to draft this more narrowly that would satisfy the gentlemen's objection, or is the gentleman's position that any inquiry necessarily would interfere with the proper functioning of the Justice Department, and therefore we are unable as the oversight committee to gain information upon which we can make a determination as to policy judgments? Mr. Schiff. I don't think, reclaiming what little time I have left -- I don't think that there is no way that this could be done that would satisfy the concerns of the Justice Department. I would think that there would be a way to protect the information. I would be more than willing to work with the gentleman and work with the Justice Department to see if we could do that, but I don't know that we can do that on the spot today. Yielding back.