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.  


--
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."

Why torture should not be a partisan debate

As I mentioned in my previous post comparing the foreign policies of Bush (43) to Truman and Obama to Nixon, the two parties don’t have as consistent a position on policies as the pundits would have you believe ... which is one of the main reasons why I'm an independent. Regardless, today's case in point – torture. Did you know that it was Ronald Reagan who signed the UN Convention Against Torture Treaty? (US State Department) That's the law that outlaws "cruel, inhumane or degrading treatment". And yet all of the defenders of America’s policy of torture are of Reagan’s party - the party that still considers Ronald Reagan it's greatest hero.

Don't get me wrong, I’m not naïve; the reason that right-wing pundits are defending this torture is because September 11 and its aftermath happened during a Republican administration. Does anyone really believe that the same pundits would be defending the torture policy if it were done during a Democratic administration?

Herein lies my point. It makes perfect sense that the Republicans Richard Cheney, Jay Bybee and John Yoo are defending the policy of torture – they were the enablers of that torture. They are also members of a previous Administration whose “approval rating is the lowest final rating for an outgoing president since Gallup began asking about presidential approval more than 70 years ago.” (Gallup - CBS News) But this does not mean that the debate needs to be a partisan one. During the 2008 Republican National Convention, there was quite a bit of buzz around how President Bush didn’t attend in person and how no one there would mention him by name. If it was alright for Republicans distancing themselves from an unpopular president, there is no reason why Republicans cannot distance themselves from an unethical policy of that president, which happened to also have been condemned by the great Republican hero Ronald Reagan.

If that argument doesn’t convince you, try looking at it this way. One of the criticisms of the originally released torture memos was that the conclusions could effect American citizens suspected of terrorism. Currently, there is a Democratic administration which says that it is against these methods. What if that wasn’t the case – and what if a right wing group threatened a terrorist attack or was merely suspected of links to terrorism?

Republicans – for whatever reason, do yourselves and the country a favor and do the right thing. Denounce the use of torture; it’s what Reagan would have done.

Never Again

A few years ago, I participated in the Florida State University Holocaust Institute for Educators. Of course there were the standard pictures and films of the atrocities, but the true treasure of the event was that we were able to listen to and meet with several holocaust survivors. I bring this up because each time I try to sit down and write about the current Debate on Torture, I can’t stop thinking about something that one of the holocaust survivors said. Someone asked what I thought was an innocuous question at the time, but I vividly remember her answer. She was asked why she kept coming to these lectures and she answered: “So that I can put a human face on it, and do my part to make sure it never happens again.”

It is time for the United States to come to grips with the fact that we tortured. We have to accept what this truly means – we can no longer claim to the white knight on the world stage. With waterboarding alone we have stooped to the likes of the Spanish Inquisition, the Khmer Rouge, and the Gestapo. Just as with the Holocaust there will always be deniers, but in the end we need to expose the full horror of what was done in order to embarrass the population into understanding that torture is not acceptable and dissuade possible enablers in the future. Investigating, exposing and denouncing what happened can we begin to regain the trust of our allies, and in order to make sure this doesn't happen again.

There are quite a few things I would like to address on this topic; I will continue to write about this issue in the coming days. I invite everyone to join the discussion in the days and weeks to come.

Russia, Chechnya, Iran and the US "War on Terror"

This perspective on Russia's views of Chechnya, Iran and the US "War on Terror" from Andrew Kuchins, the director of the Russia-Eurasia program. This is from an interview from the Diane Rehm Show, this one from July 2006. He gives several interesting perspectives on some of the key issues of contention between the US and Russia.

Diane Rehm: Are there parallels between the US war on terrorism and Russia's differences with Chechnya?
Andrew Kuchins: Well it gets to the way the US and the Russians perceive the war on terrorism, and for the Russians the war on terrorism is primarily Chechnya and the northern Caucasuses, and to a secondary degree would be Central Asia and then Afghanistan, which the Russians care a lot about and that's why the Russians supported us five years ago in taking out the Taliban in Afghanistan. When we get to our military effort in Iraq which we all know the Russians opposed, and when get to Russian concerns about a military operation in Iran which they also oppose, it gets to the differences in how they perceive the war on terror. Especially on Iran, this is interesting I think, for the Russians Iran is viewed more of as a strategic partner, a geopolitical partner. The Iranians have never, to my knowledge, supported terrorist groups or terrorist activities on the territory of the Russian Federation. In fact, the Iranians worked together with the Russians in diffusing the civil war in Tajikistan back in the 1990s, they worked together of course with the Russians and even us to supply the Northern Alliance to take out the Taliban five years ago. So the Russians I think are quite wary about doing something which would associate themselves with punitive actions against Iran.

________________
Source:
Diane Rehm Show: July 11, 2006 (Listen to the entire show online: Real Media, Windows Media)

Growing Tensions in Pakistan

Of course, all the news media have been covering that Benazir Bhutto's husband and son have become the new Co-Chairmen of the Pakistan People's Party. Much more importantly is what the PPP has been saying (italics added):

The PPP's new leadership indicated yesterday that the party, seared by the tragedy, has now become a formidable enemy to the embattled Mr. Musharraf. "Cooperation with him is out of the question now," said Taj Haider, a senior PPP official and former senator. "What we are doing is accusing Gen. Musharraf of murdering Benazir Bhutto." ...

Harnessing suspicions of government involvement has become the key campaign plank of the PPP ahead of the national election Jan. 8 that is set to install a new prime minister to share power with Mr. Musharraf. The issue of Islamist extremism has virtually disappeared from the public debate. ...

The party of former Prime Minister Nawaz Sharif -- which just two days ago declared it would boycott the election -- indicated yesterday that it will take part in the vote if PPP also participates. ...

In contrast, Mr. Musharraf's allies -- until now the most vocal backers of the Jan. 8 election -- have started to call for a delay. ...

PPP officials yesterday cautioned against any moves to prevent the Jan. 8 vote from occurring on schedule. ...

Should the government embark on this path, he added, the PPP will respond "on the streets," with massive unrest.

- Wall Street Journal (italics added)

Even if Musharraf had nothing to do with Bhutto's assassination, he now finds himself in a no win situation. Even before Bhutto's assassination, the January 8 elections were going to be seen as less than legitimate because the state of emergency was only lifted on December 15 (- BBC South Asia). And now his own supporters are pressuring him to 'postpone' them. Both will undoubtedly lead to further unrest and lead us all further from the goal of containing the Al Qaida and Taliban forces.

Nawaz Sharif on Bhutto's Assassination

"Pakistani opposition leader Nawaz Sharif announced Thursday his party was boycotting next month's elections following the assassination of Benazir Bhutto. He demanded that President Pervez Musharraf resign immediately.

"The holding of fair and free elections is not possible in the presence of Pervez Musharraf. After the killing of Benazir Bhutto, I announce that the Pakistan Muslim League-N will boycott the elections," Sharif told a news conference, referring to his party. . . "I demand that Musharraf should quit immediately," he said. "Musharraf is the cause of all the problems. The federation of Pakistan cannot remain in tact in the presence of President Musharraf." "

- Seattle Times, NPR 2pm newscast

This warrants very close international attention.

Pakistan and Benazir Bhutto

"Ms Bhutto had just addressed an election rally in Rawalpindi when she was shot in the neck by a gunman who then set off a bomb..." - BBC South Asia News

This is disappointing in so many ways. First of course it is a human tragedy, but this is a marker of how bad things have gotten in Pakistan. Let's consider for a moment what has been happening there lately.

The Taliban and Al Qaida have been growing their influence near the border with Afghanistan, and have made several major terrorist attacks in the past few months. The Pakistani military (which is supposedly headed by Musharraf) has been routed, so the US has been funding a questionable militia of local tribal members known as the "Frontier Corps" (-Foreign Policy). The New York Times reports that more than five billion dollars in US aid to Pakistan "more than five billion dollars in US aid to Pakistan has often never reached the military units it was intended for to fight Al-Qaeda and the Taliban, and was instead diverted to other programs" (- Yahoo News). Musharraf imposed martial law to keep himself in power by imprisoning supreme court justices who were going to judge his continued rule unconstitutional (- BBC South Asia). And now one of Musharraf's main opponents is killed, assumably by Al-Qaeda linked terrorists.

Questions will be asked if Musharraf was involved, whether members of the Pakistani military (the most powerful group in Pakistan) were involved. Right now we don't know the answer to this; we probably will never know for sure. In the short term we need to closely watch Musharraf, not for what he says, but for what he does to react.

However one thing is certain, the clear losers are all those who had hoped for a democratic Pakistan.