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."