Miranda!

(UPDATED)

Steve Benen and John Cole offer complementary takes on the complaints of John McCain and Peter King that the apparent Times Square “Generation Veal” attempted bomber should not have been informed of his Miranda rights. 

Benen’s take is right on the money, and I have little to add:

Najibullah Zazi was Mirandized, and the entire case went beautifully. Umar Farouk Abdulmutallab was Mirandized, and the results have been excellent. When shoe bomber Richard Reid was taken into custody, the Bush/Cheney administration read him his rights five minutes after he was taken off the plane he tried to blow up, and McCain never said a word. It’s been standard practice, especially with American citizens upon their arrest, for years — spanning administrations of both parties.

Can’t McCain just let the grown-ups do what they do without offering suggestions from the peanut gallery? The Joint Terrorism Task Force caught the suspect 48 hours after the attempted bombing; the frequently-confused Arizonan should probably trust them to know how best to proceed.

‘Nuff said.

But Cole’s take on the matter is completely misguided and is emblematic of a particular pet peeve of mine – the failure to understand the nature of Miranda rights.  Cole claims that McCain and King’s demand for no Mirandizing of the suspect demonstrates a disregard for the rule of law and a desire for a banana republic.  Obviously Cole is being hyperbolic, but the assumption underlying the hyperbole is completely wrong – ie, that there is a constitutional right to be Mirandized.

Miranda v. Arizona is an important case.  Moreover, it was rightly decided, or at least decided in the best way that the Court had available to it.  But, contrary to the claims of various conservatives who like to throw around the “judicial activism” canard, Miranda did not create any new rights.  It did not create a “right to be read your rights.”

Instead, it created a rule of evidence, and a common-sensical rule at that.  What Miranda found was simply that one cannot waive their Constitutional criminal procedure rights unless one does so knowingly and willingly.  The right to an attorney and the right against self-incrimination exist independently of Miranda.  But they apply only to criminal proceedings.

For instance, if one is interrogated without being given a Miranda warning, that fact alone cannot form the basis for a civil rights lawsuit.  See, e.g., Chavez v. Martinez, 538 U.S. 760 (2003).  The Miranda warning requirement is thus not a right in itself, but is instead merely a “prophylactic measure” intended as a safeguard of the right against self-incrimination and the right to an attorney. 

In the case of the attempted Times Square bomber, this simply means that the government would not be permitted to use any evidence obtained as a result of a Miranda-less interrogation in a criminal trial of the bomber.  If there is ample evidence to try and convict the defendant in the absence of that interrogation, then there is no Constitutional need to Mirandize him. 

The failure to do so is simply not a violation of his Constitutional rights, and his Constitutional rights to an attorney (for purposes of a criminal trial) and against self-incrimination remain intact, as do his rights to due process, a speedy trial, habeas corpus, etc.  The government cannot simply lock him up and throw away the key simply because it has deemed it unnecessary to Mirandize him.  Nor can it torture him, beat him, or otherwise treat him any differently from your average arrestee.  What it can do, however, is attempt to question him for the limited purpose of obtaining intelligence about other suspects, and indeed use evidence it obtains as a result against those other suspects.

Miranda safeguards against law enforcement practices of obtaining an arrestee’s waiver of his Constitutional rights through deception or coercion.  It has little-to-no applicability where the government is not attempting to obtain any waiver of those rights at all.  In this sense, there is actually nothing inherently objectionable with Congressman King saying “I know he’s an American citizen but still,” because King is expressly referring to the needs of the intelligence community, not the needs of prosecutors. 

That’s not to say that the government was wrong to quickly Mirandize the would-be bomber – as I note above, Steve Benen quite succinctly explains why the opposite is true, and the only thing I’d add is that this is quite likely a situation where the government has a particularly strong interest in ensuring that the fruits of its interrogations are admissible in court. 

Nor is this to say that McCain’s and King’s views in this subject area are necessarily only ignorant of law enforcement’s thought processes rather than outright malignant.  I strongly suspect neither is terribly in favor of actually subjecting terrorism suspects to trial or otherwise permitting them due process protections.

It is, however, to say that opposition to Mirandizing terrorism suspects, even suspects who are American citizens, does not, by itself, demonstrate a disregard for the Constitution. 

Meanwhile – and this is my big pet peeve here – promoting Miranda as if it established a cognizable right rather than merely creating a safeguard for the protection of existing rights unnecessarily and inappropriately validates claims that liberal criminal procedure decisions constitute a form of “judicial activism” by creating previously unrecognized rights.  Miranda did no such thing and deserves respect precisely because it demonstrates that liberal views on criminal procedure are critical to the protection of long-established rights with a venerable history dating at least to the Bill of Rights.

UPDATE: Despite the above (very limited) defense of McCain and King against John Cole’s accusations (but not Steven Benen’s), everything that Cole said would be 100% on the money if applied to Joe Lieberman’s Constitutionally-offensive proposal, which of course was rapidly applauded by Republican Senator John Cornyn.

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34 thoughts on “Miranda!

  1. We do not read them their rights because we are “weak” or “soft on terrorism”.

    We read them their rights because we are Americans. That is what we do.

    The Nazis did not do a whole lot of rights-reading. Stalin and Mao? Feh. Che? He, I understand, was more interested in giving monologues to a guy tied up in a chair that eventually came to a crescendo at which point Che shot the poor bastard in the head.

    We read rights. We have trials. Sometimes we even find people innocent.

    This is something to brag about.

    I have no idea why McCain’s handlers let him say such things in public. McCain should find a nice porch and enjoy his dotage while Americans still burdened with the memories of real and actual existential threats take care of Islamic Terrorism.

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  2. “One should not forget that only a building can have a structure, but that a movement… can have only a direction, and that any form of legal or governmental structure can be only a handicap to a movement which is being propelled with increasing speed in a certain direction.” — Hannah Arendt, Totalitarianism

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  3. This is a good point to remember.

    Nevertheless, with 85% or more criminal convictions in this country obtained in large measure on the strength of confessions — post-Miranda confessions at that — Miranda should presumptively be in play each and every time an arrest is made.

    Moreover, the sentiment expressed by Sen. McCain and Rep. King is not based upon such a fine parsing of the laws of criminal procedure and the rules of evidence as Mark discusses. McCain and King are expressing the idea that because Shahzad is a “terrorist,” he is not entitled to the same kinds of rights that “innocent citizens” are entitled to. This is the concept that, perhaps inexactly, those of us who insist that Shahzad should be (by now, “should have been”) Mirandized are getting at. Shahzad is a U.S. citizen and that, by itself, means he is afforded the full panolpy of rights to which all U.S. citizens are entitled.

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    • @Transplanted Lawyer, I’m not as sure that McCain and King were specifically getting at that point, at least not with these specific quotes. Joe Lieberman, on the other hand…..

      But McCain’s and King’s quotes specifically center on a reference to intelligence operations, for which there are at least some (very rare) situations where you can envision Mirandizing to be less than the best option. The thing is that neither King nor McCain are remotely in a position to make that kind of a judgment, and it’s pretty clear that those in the best position to make the judgment determined that not enough intelligence stood to be gained to justify the significantly increased risk of an acquittal/dismissal.

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      • @Mark Thompson, “But McCain’s and King’s quotes specifically center on a reference to intelligence operations, for which there are at least some (very rare) situations where you can envision Mirandizing to be less than the best option. ”

        And the more that people are arrested – sorry, ‘detained’ – sorry ‘disappeared’ in the USA by ‘intelligence services’, rather than police, the closer we are to a police state.

        That’s not an arguable point – at least, not honestly.

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  4. Say someone confessed during pre-Miranda interrogation, was subsequently Mirandized, and repeated their confession subsequent to their Miranda warning under the impression that they had already divulged this information. Wouldn’t there be a good chance that the post-Miranda confession would also be thrown out?

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  5. I think you are being a bit generous with McCain and King. If this is anything its example #3929384 of conservatives who see law and rules as troublesome and obstacles. Its like they saw Dirty Harry (a great movie by the way) and took it as a documentary and bible for issues regarding law enforcement.

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    • @greginak, I get your point and ordinarily I’d agree, but since both McCain and King made statements to the effect of “get the intel, then Mirandize,” and there are at least some rare situations where doing exactly that would hypothetically make sense, I don’t think these particular quotes are meant as a cry to eliminate Constitutional rights the moment that terrorism is involved. Don’t get me wrong – I’ve got little doubt that both King and McCain would be in favor of doing exactly that, and I wouldn’t be in the least bit surprised if they signed on to Joe Lieberman’s proposal to automatically revoke the citizenship of anyone accused of belonging to a terrorist organization. But these particular quotes are too easily separated from that thought process to warrant imputing it as the point of their quotes.

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      • @Mark Thompson, “But these particular quotes are too easily separated from that thought process to warrant imputing it as the point of their quotes.”

        These people should know far better, IMHO they do. And to the extent that they don’t, or don’t care, they shouldn’t be Senators. They should have any position of power whatsoever.

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        • @Barry, Should know better than what? As I try to explain in full here, taken at face value, the only problem with these quotes is that they are presuming to know better than law enforcement how to do law enforcement’s job. Which is a big problem in its own right, but is far from being, in itself, a misunderstanding of the nature of the Miranda warning or of civil liberties more generally.

          Look – I’m trying to make a very nuanced, but very important point here, to wit: there is no “right” to a Miranda warning, and the rights that Miranda warnings protect are solely relevant for the purposes of a criminal prosecution. Responding to McCain’s, King’s, and, for that matter, Thiessen’s complaints by saying that those complaints are totalitarian in nature thus spectacularly fails to rebut their point. This is a particularly big problem because their point is completely wrong and insane for other reasons. It’s thus a terrible idea to leave that point rebutted only by straw men.

          On the other hand, attacking Lieberman’s proposal as totalitarian in nature is exactly what should be done, and if King and McCain sign on to it, then they should be so attacked at that point.

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  6. There may not be a right to being Mirandized, however, the underlying sentiment is surely the substrate of the Bill of Rights.

    What good are your rights if you don’t know what rights you have?

    This has been enshrined in the rule of law many times, then reconfirmed at every opportunity. We – as a country – require something better of ourselves and our laws. It is for such reasons that we take these extra steps to ensure those who come under the control of the state are treated fairly (or, at least, that’s what we used to stand for).

    We don’t just want to “win” against the “bad guys”. We want to win honestly and fairly against the “bad guys”. I think you are focusing too much on the letter and not enough on the spirit, Mr. Thompson. But, on the whole I agree with your point.

    Lieberman’s proposal has only one purpose. The past 9 years have set a trend, that is becoming more acceptable to the public every day.

    “Do whatever is necessary to keep me safe. I don’t really want to know the details.”

    By revoking citizenship, it just allows the state to continue the barbaric torture policies of Bush and Cheney (and, now, in some cases, Obama). As much as it pains me, I’ll bet a majority in the country will support Lieberman’s proposal.

    We don’t deserve our White Knight image anymore. Not that we ever really had it, except when looking at the fantasy America.

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    • @John Howard Griffin, I almost entirely agree with this, and you’re probably right that I’m being a bit nit-picky here. The one part I do want to respond to, more by way of clarification, is this:

      “There may not be a right to being Mirandized, however, the underlying sentiment is surely the substrate of the Bill of Rights.”

      This is absolutely correct. However, the provisions of the Bill of Rights that Miranda protects are purely provisions related to criminal procedure. So, for instance, there’s no right to talk to a lawyer or against self-incrimination when you’re purely dealing with an investigation; there are, to be sure, other rights that apply in that context, and if the government tries to use your statements to then prosecute you, then it could have some problems. But the specific rights that Miranda safeguards don’t really apply to an interrogation that is solely to be used for purposes of furthering an investigation against third parties.

      Basically, if you’re arrested and the government isn’t much worried about using what you say at trial against you, there’s no reason they shouldn’t be able to obtain as much evidence from you as they possibly can from you, with or without a lawyer present (provided, of course, that they do so without engaging in interrogation tactics that would independently be a violation of your due process rights). That said, as a practical matter, I’m skeptical that there will be many, if any, occasions where an arrestee in such a situation would be willing to provide more information without a lawyer present than with a lawyer present – if the government’s case against you is that ironclad, your lawyer is probably going to advise you pretty quickly to cooperate as much as possible.

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    • @John Howard Griffin, “Lieberman’s proposal has only one purpose. The past 9 years have set a trend, that is becoming more acceptable to the public every day.

      “Do whatever is necessary to keep me safe. I don’t really want to know the details.””

      Well, Lieberman held that attitude as the Bush administration screw things up in a big way. By now, it’s clear that he likes sh*t like this – at least until some israeli spies are picked up and, uh, ‘processed’. He’s just another right-winger who figures that torture and other police state methods will be primarily used against people he doesn’t like.

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  7. I think you’re reading far too much into this Mark.

    IMO “Mirandizing Terrorists” is basically code for “giving them rights”. That is to say giving them any constitutional rights at all. Now there are legal technicalities on what Miranda actually did (and I agree with your analysis) but that is not at issue here per se that issue.

    I’m pretty sure that at least King and McCain are using the issue in the sense that THEY seem to believe it’s the act of Mirandizing a suspect that provides them rights (as does that idiot Thiessen) which is presumably what Cole is railing against.

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  8. I think perhaps what would be instructive would be information regarding the variation of practice that in fact exists in either the counterterrorism or just the regular criminal justice fields in when and if those arrestees — U.S. citizen; terrorism suspect or otherwise — are read their rights. If the law allows the government to strategically Mirandize based on prosecutory expectations and needs as Mark describes (and which I take to be 100% true), then one would expect to see them taking advantage of that in ways that produce variation in practice. Seeing that such strategizing, delays, or even occasional decisions not to MIrandize exist in the normal course of arrests would put the point in clearer relief. On the other hand, a total lack of such variation i think would raise questions about the very point Mark is making, even if it is perfectly right as the law reads. Making exceptions to what would otherwise be a near-100% uniform practice in certain cases might constitute a denial of equal justice in any case, might it not, Mark?

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    • @Michael Drew,
      “then one would expect to see them taking advantage of that in ways that produce variation in practice.”

      To be honest, I’m not sure that this is the case, or at least not in a meaningfully measurable way. The reason I say this is because post-arrest confessions/statements have become so critical to how law enforcement operates – TL points out above that at least 85% of successful prosecutions rely in some significant way on such confessions. So the number of situations where a prosecutor would have enough confidence where this would even theoretically come into play would be quite rare to begin with. Even in those situations, you’d have to have a pretty strong reason to think that an interrogation outside the context of a Miranda warning (but otherwise within the confines of due process protections) (1) would elicit intelligence that would not ordinarily be available, and (2) the intelligence likely to be elicited is sufficiently valuable as to warrant the inability to use that evidence in the prosecution. In other words, the number of situations where it might be worth interrogating someone without a Miranda warning are so few and far between as to be close to zero. You effectively need a ticking-time bomb scenario combined with a number of other unusual factors.

      It’s not that the law permits “strategic Mirandizing” – it’s that the rights Miranda safeguards are specific to the context of a criminal prosecution – e.g., no person “shall be compelled in any criminal case to be a witness against himself.”

      As for your equal justice point, I’m not really sure where you’re trying to go. If you’re trying to suggest that this might be an equal protection violation because of its non-uniformity, then that suggestion would be pretty clearly wrong – there’s no suspect classification here and there’s also no real interest affected on the part of the arrestee (again assuming no independently unconstitutional interrogation methods are used).

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      • @Mark Thompson, Would a confession that came after a Mirandization but was part of a period of interrogation that commenced prior to Mirandization be inadmissible? If so, I entirely see your point wrt to that.

        On the equal protection, I was just speculating there. It seems like tthat if you’re the .01% of what is a 99.99% universal practice, you might have some argument of unequal treatment, but I suppose if there is no underlying guarantee, then there just isn’t, and police/prosecutors have that lattitude.

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  9. I have given up trying to understand the reasoning [1] used by people who believe on the one hand that terrorists are a combination of MacGyver and Hannibal Lecter that no SuperMax prison could hope to contain, and on the other that they’re too dumb to know they can clam up and ask for a lawyer unless we specifically remind them.

    1. If that’s the word, which it isn’t.

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  10. Another Miranda thought: Nothing says “busted!” like being read your rights. It’s part of the ritual now, and the ritual is demoralizing.

    Demoralized people talk.

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  11. Could someone explain to me how Lieberman’s proposal is different than the citizenship stripping provisions we currently have in place: 42 U.S.C. 1481. I see one potential difference: the law may only apply to taking up service with a foreign state, as opposed to a non-state actor. We used this law to strip the citizenship of Americans who went over to Germany to fight us during WWII. The extent to which we apply concepts for state actors to non-state actors seems like a legitimate policy question.

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      • @Mike Schilling,

        Well, Lieberman says it wouldn’t be automatic. Existing law allows citizenship to be stripped in a non-criminal setting with proof by mere preponderance of the evidence. Since it’s non-criminal, his own statements could be used against him without any Miranda-related concerns.

        As to the second point, I don’t know what rights Lieberman thinks non-citizens have that citizens have. Stripping someone of their citizenship would set the stage for deporation, but AFAIK a non-citizen has the same rights in this country as a citizen.

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    • @PD Shaw, I’ll try to put a post together on this later, but looking at the existing statute, the short answer seems to be that Lieberman’s proposal would effectively reduce the burden of proof standard in treason cases from “beyond a reasonable doubt” to “by a preponderance of evidence,” at least if his proposal had the implications that Lieberman seems to think it would have (which it would not, since 4th and 5th Amendment rights apply to all “people,” rather than being restricted to just citizens and since the applicability of that law has been severely limited by the courts, which require an additional element of proof that the party intended to renounce his nationality). As the statute already exists, it permits a finding of renunciation of nationality if a person is found guilty of treason. Since active involvement in a terrorist organization dedicated to attacking the US government would inherently be treasonous, and since a treason conviction is already grounds for renunciation, Lieberman’s proposal would only make sense if he is suggesting that renunciation of citizenship for membership in a terrorist organization would occur prior to any treason conviction and would be subject to the much lower “preponderance of the evidence” standard.

      Beyond that, though, you’re correct that the main difference lies in the distinction between a foreign state and a non-state actor labeled a terrorist organization. The former is a legally distinct and easily defined entity. The latter, as we are increasingly discovering, can take any number of forms, and “membership” can range from mere ideogical affinity to oath-taking to operational planning. If you define “membership” broadly enough to include the low-level types most likely to actually execute an attack, you probably wind up defining it so broadly that relatively innocent affiliations and activities get caught up in the definition. The intent requirement safeguards against this problem somewhat, but only somewhat since you’ve got the lower standard of proof.

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