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).

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."