What is FBI Due Process for a Suspected Terrorist in Custody?

Due process requires that a person held in United States custody as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.

The specifics around procedures for detaining an enemy combatant in the U.S. we recently made clear by the president's top counterterrorism adviser, John Brennan in an interview discussing the attempted attack on the Northwest airline in December, 2009. Brennan confirmed that the FBI protocol for handling terror suspects is to (1) detain suspect, (2) bring in high-level interrogators to question the suspect for intelligence purposes and (3) read suspect Miranda rights.

Critics of this protocol are pushing to militarize the process for all terrorism suspects and deny them the basic due process rights provided by the law. The arguments is that offering terror suspects Miranda rights after an initial intelligence interrogation by the FBI dooms the chances of obtaining useful intelligence.

This idea was formalized as "enemy combatant" logic by the Bush administration whereby those accused of terrorist activities or connections lose all rights to due process and the ability to challenge the accusation. The courts definitively rejected this proposal and during the eight years of the Bush administration every terrorism suspect arrested in the United States was initially interrogated by the FBI and every one that was tried had their trial in a civilian federal court.

While results ultimately will vary based on the circumstances, the current protocol in place has proven to be successful under the watch of John O. Brennan, Assistant to the President and Deputy National Security Adviser for Homeland Security and Counterterrorism.

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