On Miranda Warnings

This weekend, following the national drama of the Boston Marathon Bombings and metro area manhunt for the culprits, I’ve reposted & added notes to old posts on handling/prosecuting terrorists in the United States.

I wanted to add a note about Miranda Warnings because there’s been some hysteria over the fact that Suspect Number 2, who was taken alive, had not been “Mirandized” (read the standard notification of his legal rights under the Constitution and Bill of Rights) on the grounds of a “public safety” exemption to the Supreme Court-mandated advisory. First off, it bears repeating that there are no such things as “Miranda Rights.” This is a common misnomer. The rights, as mentioned above, come from the Constitution and the Bill of Rights. They were not invented by the Supreme Court’s Miranda v. Arizona decision in 1966; the court just established guidelines for a succinct set of warnings in an advisory to those being arrested so that they don’t later try to get their conviction thrown out because they weren’t notified of their right to have an attorney present and their right not to self-incriminate. Those four warnings are the ones you hear on television all the time, beginning with “You have the right to remain silent.”

Second and more importantly, he is not losing rights and no one is trampling on the Bill of Rights because the administration has invoked a “public safety” exemption and skipped the reading of the warnings. As I understand it — the “public safety” exemption on Miranda Warnings does not mean that the government will be prosecuting based on evidence obtained by statements made prior the warnings, so rights are not infringed. They usually use the exemption when they already have plenty of evidence — in this case a video has now surfaced of Suspect Number 2 placing one of the marathon bomb backpacks and walking away … so he’s going to jail no matter what he says or doesn’t say to investigators — rather they use the exemption when they want/need to find out quickly about other stuff they don’t already know. For example — they skip the warning of the right to remain silent so that they can ask if there are other bombs set to explode later or if there are other affiliated terrorists in the area. If he admits to having placed other bombs and they haven’t read him his rights, they probably can’t use that as evidence for further convictions, but they can at least find and disarm them. And at any rate, they still can’t compel the person to answer just because they didn’t officially read them their rights. Similarly, if they ask for a lawyer without prompting, the interrogation stops until a lawyer arrives. (This happened in January 2009 with Umar Farouk Abdulmutallab, when he was not Mirandized, after attempting to blow up a plane to Detroit in front of hundreds of witnesses.) Your rights remain whether or not you are advised of them. Not providing Miranda Warnings doesn’t take away rights and it can actually hinder prosecution later — so the exemption is used sparingly to obtain urgent information for public safety not to obtain new evidence for trial.

I also find it hard to believe that a 19-year-old who grew up in American culture wouldn’t know the Miranda Warnings from television — even Chief Rehnquist’s 2000 decision upholding Miranda v. Arizona that he originally opposed noted that the warnings had “become embedded in routine police practice to the point where the warnings have become part of our national culture.” He is in all likelihood well aware of his rights even if they don’t mention them. And that’s all the Miranda Warnings are: a brief mention of your rights under the law & Constitution. The rights themselves don’t change or disappear if the warnings are modified or skipped.

Somehow not good enough

I still don’t understand why Republicans suddenly think that civilian court is not good enough for alleged terrorists, even though President Bush himself did that in quite a few cases and we’ve been prosecuting terrorists that way for decades now. What is especially preposterous here is that the Nigerian trust-fund terrorist case (Umar Farouk Abdulmutallab) is nearly identical to Richard Reid’s case with the December 2001 shoe-bombing, as Jon Stewart pointed out the other day. Both attempted bombings used the same kind of explosives, both made their attempts on transatlantic flights, both weren’t Arabs (or any other typically profiled race or nationality), both were stopped by passengers and subdued, and both attempts failed completely. The only difference was that Reid put the explosives in his shoe, and Abdulmutallab put them in his underwear.

Reid was convicted in US Federal Court and he’ll be in jail for quite a while. Problem solved, by the Bush Administration no less. And yet, the Republicans keep carrying on and on about how Abdulmutallab, in a virtually identical case, doesn’t deserve due process and civilian court and how we should have tortured him. He faces life in prison from his civilian indictment on six serious counts by a federal jury, but that’s somehow not good enough for Republicans.

Here’s the Republican version of reality, 2009/2010 Edition:

“We have learned the hard way that trying terrorists in federal court comes at a high price, from losing out on potentially lifesaving intelligence to compromising our sources and methods,” [Senator] Bond said. “We must treat these terrorists as what they are — not common criminals, but enemy combatants in a war.”
That theme was also amplified on Wednesday by Senator Jim DeMint, Republican of South Carolina who said in a statement, “If it had been bin Laden himself on that plane, would we read him his Miranda rights and try him in civilian court?”

Which is to say, their reality demonstrably doesn’t match anyone else’s reality:

But several administration officials said on Wednesday that the Federal Bureau of Investigation did not initially read Mr. Abdulmutallab his Miranda rights nor provide him with a lawyer when agents interrogated him.

Law enforcement officials had concluded that because they had a planeload of eyewitnesses who could testify against Mr. Abdulmutallab, they did not need to worry about the fact that if he made any self-incriminating statements before being read his rights, they would not be admissible in court.

The White House spokesman, Robert Gibbs, has said Mr. Abdulmutallab provided “useable, actionable intelligence,” but declined to specify what it was. A law enforcement official said Mr. Abdulmutallab explained who gave him the bomb, where he received it and where he was trained to use it, among other things.

Eventually, Mr. Abdulmutallab stopped talking and asked for a lawyer, which he received about 30 hours after his arrest. It was not clear when in that timeline that the F.B.I. read him his Miranda rights.

The civilian court system that worked perfectly in very similar cases is somehow not good enough anymore. I wonder if it’s too soon to ask obnoxiously why Republicans hate our freedoms and the founding fathers… because that’s what they’ve been doing for several years now for us.

This post was originally published on Starboard Broadside.