A Suspected Terrorist’s Statements that he was “Going to Wait” and Inquire Into Whether an Attorney was Present Were Not Unambiguous Invocations of the Right to Remain Silent or the Right to Counsel
Mohammad Amawi, a suspected terrorist, was detained onboard a jet from Jordan bound for the United States. FBI agents provided Amawi with a Miranda warning, and Amawi stated he would wait to answer questions and asked if there was an attorney aboard the jet. Amawi then signed a written Miranda waiver and answered questions for several hours. Amawi’s statements were used to aid prosecutors in his conviction. The United States Court of Appeals for the Sixth Circuit held that under these circumstances, Amawi has not made an unambiguous invocation of his Fifth Amendment right to remain silent or his Sixth Amendment right to counsel.
In the wake of the September 11, 2001, terrorist attacks, the Federal Bureau of Investigation (“FBI”) recruited former Army Special Forces soldier Darren Griffin to infiltrate a Muslim group in Toledo, Ohio, which was suspected to have connections with extremists. Griffin attended classes at an area mosque and portrayed himself as a former Green Beret who had become disillusioned with the United States and its foreign policy. Griffin was soon able to gain employment at a Muslim charity and met Mohammad Amawi at a local mosque.
Over time, Griffin developed a relationship with Amawi and others who held extremist views. On June 30, 2004, Griffin visited Amawi’s home, where Griffin stated that he wished to fight against American forces in Iraq. Amawi expressed his agreement with fighting against American forces, but found the “conditions” in Iraq were not right to wage a “jihad” or “struggle.”
Between October of 2004 and February of 2005, the two met numerous times, sometimes with other extremists present, and watched videos of the September 11th attacks, listened to messages recorded by Osama bin Laden, expressed admiration for snipers who had killed Americans, learned about assembling explosives, and made plans to travel abroad for the purposes of engaging in jihad, to recruit others to their cause, and for Griffin to begin training Amawi and others in the use of firearms.
On March 14, 2005, Amawi expressed to Griffin that he was anxious to travel to Jordan to receive training, noting that his lack of proper training was the only reason he had not yet joined the jihad. On April 5, 2005, Amawi told Griffin that he knew of someone in Syria who could provide a “chemical” to help the “brothers;” Griffin subsequently learned that the chemical was Astrolite, a highly explosive material.
On April 20, 2005 and April 29, 2005, Griffin took Amawi and others to a shooting range. On each occasion, Amawi asked if training on constructing improvised explosive devices (“IED”) could be provided. On May 18, 2005, Amawi told Griffin that he intended to go to Jordan, and on July 27, 2005, Griffin told Amawi that he had to travel to the Middle East for business. He offered to purchase a ticket for Amawi, which Amawi accepted.
On August 22, 2005, Griffin and Amawi traveled to Jordan, carrying six computers and a satellite phone. While in Jordan, the pair stayed with Amawi’s family and Griffin was introduced to several “trusted brothers.” Griffin departed alone for the United States on September 8, 2005, leaving the satellite phone and one of the laptops. Upon his return to the United States, another conspirator asked Griffin if connections had been made with the “brothers, the mujahideen in Iraq.”
On December 13, 2005, Griffin returned to Jordan at Amawi’s request, bringing a desktop computer and three CDs containing jihad training videos. Griffin departed alone on December 26, 2005. Upon Griffin’s return, he was again asked by another conspirator if he had made any contact with the “brothers over in Iraq.”
On February 17, 2006, the FBI contacted Griffin and told him to leave his apartment at once because his service as an informant was terminated, and his identity would soon be made public. On February 19, 2006, FBI agents flew to Jordan and arrested Amawi.
After his arrest in Jordan, Amawi was transferred to a jet that flew him to the United States. While on board the jet, federal agents restrained Amawi, blocked his view, conducted a cavity search, and photographed his body. The agents then informed Amawi that he was “being transported to the United States—not Guantánamo Bay—where he would face criminal charges.” Special Agent Steven Gubanich read Amawi his Miranda rights. Once Gubanich explained to Amawi that “if [he] decide[d] to answer questions [on the jet] without a lawyer present, [he would] have the right to stop answering at any time,” Amawi interrupted Gubanich, saying “I’m going to wait.” Gubanich asked Amawi if “he wanted to talk to [the Agents] or not.”
Amawi responded by inquiring as to whether there was a lawyer he could have access to onboard the jet. Gubanich replied in the negative, saying there was no lawyer onboard. Gubanich then finished reading Amawi his Miranda rights. Gubanich determined Amawi’s question meant he “was undecided whether he wanted to talk to us.”
After Gubanich finished reading the Miranda rights, Amawi signed the Miranda waiver form and spoke to the agents. After two hours of interrogation, Amawi asked, “[w]ill there be a lawyer?” Gubanich stated he believed Amawi was asking whether he was going to, at some point, be afforded an opportunity to speak with a lawyer. Gubanich said, “yes, there would be a lawyer made available . . . through the normal legal process in the United States.” Gubanich then continued with questioning.
Five hours later, after considerable questioning, Amawi stated “I guess I’m going to have to wait until I get a lawyer.” Gubanich interpreted this to mean Amawi no longer wished to speak with agents without an attorney and stopped the interrogation. During the nine-hour interrogation, which included breaks, Amawi made numerous inculpatory statements.
Amawi was tried before the United States District Court for the Northern District of Ohio where he was ultimately convicted of conspiracy to kill and maim persons outside the United States, in violation of 18 U.S.C. § 956(a)(1), and of conspiracy to provide material support to terrorists in furtherance of the killing of U.S. nationals, in violation of 18 U.S.C. § 2339A and sentenced to twenty years in prison. This conviction came despite Amawi’s objection that incriminating statements made onboard the jet had violated his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel.
On appeal to the United States Court of Appeals for the Sixth Circuit, Amawi maintained, among other things, that his conviction should not be upheld because his Fifth and Sixth Amendment rights were violated. Specifically, Amawi argued that when he said “I’m going to wait” and asked “is there a lawyer on board” and “will there be a lawyer?,” he was invoking his right to remain silent and to refuse to answer questions without the presence of counsel.
The court of appeals rejected that reasoning, explaining that precedent requires that “a suspect must assert his right to remain silent with sufficient clarity that a reasonable officer would perceive it as such under the circumstances.” Franklin v. Bradshaw, 545 F.3d 409, 414 (6th Cir. 2008). The court of appeals found, instead, that a suspect simply stating that he would “wait” and asking whether an attorney was present was not an unambiguous invocation of the right to remain silent or request for counsel. Indeed, questions regarding the presence of an attorney could have reasonably interpreted to mean that Amawi wanted to ensure that he would have access to an attorney at some point, such as upon landing; this was especially plausible given Amawi’s apparent fear that he might be sent to Guantanamo Bay, where he might fear he would have limited access to an attorney in the future. Moreover, Amawi received an oral Miranda warning as well as a written Miranda waiver, which he signed it. Amawi’s ambiguous statements and questions did not require FBI agents to halt their questions because they were not unambiguous invocations of the right to remain silent or the right to counsel.
As the court of appeals rejected this argument and other arguments made by Amawi, his conviction was upheld.
The case, United States v. Amawi, can be found here.