Setting the Record Straight on Miranda

While I wrote my comment on the extraterritorial application of Miranda v. Arizona, I felt that I had to spend what I felt to be an undue amount of time dispelling the myths around “Miranda rights.” Unfortunately these myths are being further perpetuated as we speak.  

The FBI released a memorandum this week titled “Custodial Interrogation for Public Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside the United States.” [1]  Unfortunately, this document has been utterly misconstrued by every single news article I have seen.  Take as an example the headlines: “Rights are Curtailed for Terror Suspects” by the Wall Street Journal, “Obama administration curtails rights for terror suspects“ by the Daily Kos, and my personal favorite “So Long, Miranda” in the self-identified neo-conservative Commentary Magazine.  I’ve read the short memo several times now, and I have yet to find anything controversial or even new about the guidelines.  

As I wrote in my comment:[2]

In popular culture, the phrase “Miranda rights” is often used to mean the Miranda warnings. But the issue of Miranda warnings is a red herring; there is not, and never has been, a right to be given Miranda warnings.  Although Miranda has made its way into the public realm, belief that there is a right to Miranda warnings is a misconception held by both sides of the political aisle.

This misconception defines the public debate of Miranda. Recently Senator John McCain was criticized from right and left alike when he suggested that an American citizen suspected of terrorism should not have been given Miranda warnings.  Politics aside, the Senator was right and the pundits on both sides got it wrong; the self-incrimination clause prevents a suspect from being compelled to be a witness against himself “in any criminal case.”  Miranda v. Arizona does not convey a right to Miranda warnings at the time of interrogation; it instead conveys a right to exclude un-Mirandized statements at criminal trial.

Even within the territory of the United States no one, from an accused jaywalker to an accused terrorist mastermind, is entitled to Miranda warnings because Miranda is a right that only occurs at trial.  Thus, the true question is whether the Constitution requires any particular statement, made in the absence of Miranda warnings, to be excluded at criminal trial.

There are several exceptions where un-Mirandized statements can be admitted at trial which include among others, an exception where public safety is at stake.  

The FBI memo walks almost the exact line that I outline in my comment.  It notes that the “Supreme Court has strongly suggested that an arrestee's Fifth Amendment right against self-incrimination is not violated at the time a statement is taken without Miranda warnings, but instead may be violated only if and when the government introduces an unwarned statement in a criminal proceeding against the defendant” and cites Chavez v. Martinez.  I’ve read that case more than a few times, and take the FBI’s characterization as only “strongly suggesting” instead of “holding” that the Fifth Amendment is a right at trial to be a limited reading of the case.[3]

The Obama administration came up with an unnecessarily limited reading of one of the seminal cases on the issue which is actually leaning toward civil rights, not against them.  And not to belabor the point, but the Obama administration cannot “curtail” rights that never existed in the first place.  


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Footnotes
[1] The New York Times published the full memo here, an hour before I wrote this article.  It is worth noting that the New York Times was far more measured and accurate in its analysis: ”Delayed Miranda Warning Ordered for Terror Suspects.”
[2] While my comment Domestic Trials, Overseas Interrogations, and the Territorial Scope of Miranda v. Arizona currently awaits a publication decision, I have created an abridged version to use as a writing sample which may be found here.  This includes the following excerpt with full legal citations.
[3] The issue is whether Chavez is a binding majority opinion or a non-binding plurality opinion on the question of whether Miranda is a right only available at trial. I count a five justice majority on this holding: Thomas, Scalia, Kennedy, Stevens & Ginsburg.  Chavez v. Martinez, 538 U.S. 760, 789 (2003).

The Fourth Amendment Overseas, a brief summary

In the past few months, I have written extensively on which parts of the constitution apply to non-citizens outside the territorial jurisdiction of the United States.  As I await official publication on my Miranda and Habeas articles, I wrote a brief explanation of the Fourth Amendment to share with a class.  Rather than keep it to myself, I decided to post it online and share it here.

Verdugo after Boumediene: Why the Guantanamo Litigation is Not Limited to Obscure Habeas Corpus Issues, and Should Matter to Everyone Who Works With Non-Citizens

Note: This is the same United States v. Verdugo-Urquidez that Professor Vladeck and I debated in Blog Cross-Pollination.

Blog Cross-Pollination

I had a lively debate with Professor Vladeck today about a key case I'm using in my comment.  In the middle of the conversation, he started to write a blog post about our conversation - I'm glad to see that other people do this too.  Anyway, I had class immediately thereafter, and by the time I got out, the article was finished and eight other people had already responded.  My response is in there, but it is rather far down the list.

Link:
"When is a Majority Opinion Really a Plurality Opinion?" by Professor Stephen Vladeck

Miranda Overseas - Introduction

One of the arguments justifying indefinate detention of detainees without charge in Guanatamo Bay was the constitutional right to habeas corpus did not apply to non-citizens overseas.  In June 2008, the Supreme Court repudiated this reasoning in Boumediene v. Bush, holding that non-citizens in American custody in Guantanamo Bay are indeed entitled to the constitutional right of habeas corpus.  But the question remains as to whether Boumediene was a narrow or a wide decision; the question of other constitutional rights overseas remains ambiguous.  In particular,  the Supreme Court has not ruled on the overseas application of other constitutional rights including the Fifth Amendment right against self-incrimination, as interpreted in Miranda v. Arizona.

Miranda is more than just a forty-six year old Supreme court case on legal and social policy; it has become part of American culture.  Unlike the much of the minutia of law and legal procedure that only lawyers deal with, even the average layperson has heard of Miranda.  But this widespread knowledge of Miranda makes it ripe for political posturing, especially on whether Miranda should apply to non-citizens overseas.  One Democratic congressman proclaimed "[t]here's not a single member of this Congress that believes that Miranda warnings should be given to terrorists."  Similarly, one law professor noted that after September 11, "the notion that terror suspects would be given Miranda warnings seems almost quaint."  The political edge of this issue seems to be citizenship status: the former presidential candidate John McCain was criticized from right and left alike when he suggested the accused Times Square bomber, an American citizen, should not have been given Miranda warnings.  [For an analysis of the merits of this argument, see a forthcoming article Miranda Overseas - Defining Miranda.]

But these are political questions for the politicians and pundits to debate; a debate which will have little, if any, effect on the law.  Miranda is a constitutional right, and the constitution applies to everyone within the borders of the United States.  Without a doubt, American citizens arrested in the United States are entitled to the same rights regardless of the crime of which they are accused.  As the law currently stands, documented and undocumented non-citizens arrested in the United States are also entitled to the same right Miranda rights as citizens.

Those who are frequent readers of this blog will know that the answers to the questions posed in Miranda Overseas will not be based on a political analysis.  Indeed, while a definitive answer on this issue would upset one side of the aisle, it could also shift the winds to help that side of the aisle on the related issue of military tribunals.  [Because of the significant lack of history on which to base my analysis, I do not take an opinion on whether Miranda could apply in the military tribunals.]

Rather, the question of Miranda Overseas is a metaphor for how far the the constitution, and the domestic case-law analyzing those constitutional rights like Miranda, follow us when we travel abroad, or when our government decides to charge a non-citizen captured overseas with a crime in American civilian courts.  While  the analysis of these issues will focus primarily on terrorism and drug cases, these issues are far from limited to these two issues.  As Supreme Court Justice Felix Frankfurter noted, "the safeguards of liberty have frequently been forged in controversies involving not very nice people."

Habeas and [the tort of] False Imprisonment

I was a little alarmed when a friend showed me an article which explained how in the aftermath of Hurricane Katrina, prisoners charged with misdemeanor offenses were incarcerated for over a year "doing 'Katrina time'" because "Governor Blanco effectively suspended habeas corpus ... for six months." [link to article]. The US Constitution of course reads: "[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Without going into the specifics of whether the Governor actually tried to suspend habeas, it is first worth noting that no state actor [state supreme court, governor, legislator, police officer, etc] can violate your federal rights like habeas corpus, due process, speedy trial, etc.  They may try, but you are always free to file a habeas petition in federal court; the federal constitution trumps pretty much everything.

Again, without investigating the veracity of the allegation, let's say you were arrested and it took six months before you were released without charge, or you were held for a year for a charge that had a maximum penalty of one month.  This sounds like unquestionable unjust imprisonment, which could have been challenged with a habeas petition.  But let's say you didn't challenge it while you were imprisoned - you didn't have a lawyer, your lawyer was overworked and didn't think of habeas, or your lawyer mistakenly believed habeas could be overruled by a governor.  You are not out of luck - you are still entitled to sue for damages under the tort of "False Imprisonment."

As I continue to research habeas corpus issues, I am struck by the similarity of a habeas petition [trying to get out of jail because of unjust imprisonment] and the tort of False Imprisonment [suing for damages because of your unjust imprisonment].  But the beauty of the False Imprisonment tort is that, unlike with habeas, you can sue months and possibly years later, depending upon the statute of limitations.  I doubt there have been many class action suits alleging false imprisonment in the past, but if the allegations are true, there could be a big one coming in Louisiana.

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Disclaimer - I would like to remind anyone reading this that presently I am law student and not a lawyer.  While I may write about issues I find interesting, I cannot dispense legal advise.  That said, in addition to the tort of false imprisonment, your attorney would be wise to also consider 42 U.S.C. § 1983 - Civil Action for Deprivation of Rights [link].

What is History?

As I begin to read Paul Halliday's Habeas Corpus - From England to Empire, whose premise is that conventional knowledge of Habeas Corpus is based on an incorrect perspective on history, I can't help but admit that he's right, at least so far about the analysis of the historical record.

I have never liked the phrase "history is written by the victor," because the victor isn't writing history - he's writing his perspective on history, which is no more valid than that of the looser.  In the past, I had thought that merely reading two opposing interpretations of history was adequate to get a full perspective on a topic  ... but when you think about it, what if both sides got it wrong?  Or what if you never had an adversarial relationship to begin with, but over hundreds of years the original meaning eroded over time?

Back to the issue of Habeas Corpus, it wasn't in the Magna Carta in the 13th century, but definitely existed by the 17th century.  Halliday writes that:

Despite the force of this belief, connecting the thirteenth century to the seventeenth along a single story line has always proved difficult. So much awkward silence separates them that some authors have thrown up their hands [saying the writ's origin "is lost in obscurity"].  Others have filled the silence with inferred lineages sprinkled with words of praise, borrowing heavily from nineteenth century historians. . . who in turn accepted [another historian's claims in the] 1620s as gospel truth. . . . Accounts of habeas corpus written in the nineteenth and twentieth centuries thus serve as durable examples of what Herbert Butterfield long ago called "whig" history. As Butterfield remarked, "the whig historian can draw lines through certain events ... to modern liberty." In doing so, the historian "begins to forget that this line is merely a mental trick." A linear approach to the writ's past that starts in 1215 fit nicely with a high Victorian impulse to write histories drawn in bold story lines with clear points of origin and arrival. But for all the power of such narratives, they do not amount to a history.  (Halliday 16).  

This paragraph blew my mind.  Never before - even when getting a Masters degree in International Affairs [which is just a History degree with a cooler name], and taking all of those history courses had anyone laid out how it's all wrong.  We're not basing our opinions by looking at original sources, your average history book is looking at tertiary sources who cited tertiary sources, who try to construct a false narrative to make it simpler than it actually is.  Comparing two opposing perspectives of this kind of history does not lead to the truth, because both sides are equally wrong.  You can't find the truth by averaging two or more incorrect statements.

So, what is history?  I have always seen it as the study and search for the truth of the events that have happened in the past.  When available, as it was with Halliday in his study of Habeas Corpus, History is Primary Sources.  Then again, Halliday spent five years combing through thousands of medieval documents, something the average individual - or even scholar - just can't do.  So in a case like that, history is a collection of secondary sources like Halliday's book, which heavily cites primary sources.

But in the end, I'm still not happy putting that much trust in one man, because even unconscious agenda's can color one's research and writing.  In an ideal world, I would like to see these ancient documents scanned and made freely available online for anyone to read through, and come to their own conclusions, and maybe write their own book which also heavily cites primary sources.

IRWatch - Back doing what it does best

Well, I've survived the gauntlet of my first year at American University Washington College of Law, and now that I can choose my own courses, and I'm back to what I do best - writing about topics that interest me. I am actually writing two articles this semester - "Do Miranda Rights Apply Overseas?" and another (currently untitled) work on Habeas Corpus rights. Now that I have interesting things to discuss,  I will be making many more posts on these subjects in the weeks ahead. I look forward to hearing your thoughts as well!