Tag: miranda rights

Miranda Ain’t Broke

The Federalist Society has a podcast up, Miranda & Terror Suspects, debating whether terrorism suspects should be given Miranda warnings. University of Utah law professors Paul Cassell and Amos Guiora debate the issue, and Richard D. Klingler of Sidley Austin LLP moderates. Cassell provides a slideshow to go with the audio file.

Listening to the podcast, I’m struck at how so many of the concerns cited by Cassell are already dealt with by existing case law. The Quarles case created a “public safety” exception to Miranda that allows officers to ask questions without giving Miranda warnings when there is an ongoing threat to public safety. In Quarles, a revolver hidden in a supermarket was enough to create the exception.

As I wrote at Townhall.com in August, the “public safety” exception has already been applied broadly in the terrorism context in United States v. Khalil:

In 1997, NYPD officers raided an apartment where two men had constructed pipe bombs and planned to detonate them on a subway or bus terminal. During the raid, the police shot and wounded the bomb maker as he lunged for a black bag containing the explosives.

After bomb technicians discovered that a switch on one of the pipe bombs had been flipped, officers questioned the wounded bomb maker about the number of bombs, how many switches had to be flipped to set them off, whether there was a timer, what wires to cut to disarm them, and whether they were intended as suicide devices. The Court of Appeals for the Second Circuit let all of the answers come into evidence via the public safety exception.

The public safety exception is settled law and has been ruled on by every federal circuit and over half the states, allowing police to deal with all manner of emergencies. Courts have allowed questions about the existence or location of guns, bombs, assault or kidnapping victims still in danger, accomplices and their identities, and plans for future crimes.

Add to this the fact that statements given before Miranda warnings are still admissible to impeach a suspect who changes his story when he gets to court, and that physical evidence obtained without Miranda warnings remains admissible.

So, here’s a practical proposal: the above list ought to be distributed to counterterrorism task forces across the nation. Instead of spending time and energy on a measure that is out of Congress’ power, have government lawyers create a pamphlet to educate the local, state and federal officers who will capture tomorrow’s aspiring terrorist. Boil down the law to bullet points and put it on a business card so that they have it on hand when the next emergency unfolds. That’s a tool first responders can use.

Citizen Shahzad

Two smart guys on opposite sides of the political spectrum have sound points about the treatment of suspected Times Square bomber Faisal Shahzad.  First, Orin Kerr points out that investigators have some flexibility in determining when and whether to read Miranda rights.  In this case, they refrained initially and questioned Shahzad for a while under the public safety exception. And despite the apparent belief of the perpetually terrorized that Miranda warnings are some kind of magical incantation that causes the cone of silence to descend upon blabbermouths, they determined that he would probably continue cooperating even after being Mirandized. But as Kerr points out, they could have proceeded sans Miranda had that seemed necessary—provided they were willing to waive the ability to introduce Shahzad’s confession at trial. Given that there appears to be plenty of other evidence against him, that might well have been a viable option.

Either way, this surely seems like the kind of judgment call best left to the investigators on the scene, not Monday morning quarterbacks in Congress like Rep. Peter King (R-NY) who gave us this priceless reaction:

“Did they Mirandize him? I know he’s an American citizen but still,” King said.

Putting aside that nauseating “but still,” does King really imagine that he possesses some deep insight into the pernicious effect of Miranda warnings that the agents on the ground lacked? Again, Shahzad is apparently still cooperating—maybe they knew what they were doing.

From Steve Benen, meanwhile, we have one of many posts around the blogosphere pointing out the incoherence of a cowardly proposal mooted by Joe Lieberman (I-CT) that would revoke the citizenship of Americans who join foreign terror groups.  The blindingly obvious question: By what process do we determine that a suspected member of a foreign terror group is really a member of a foreign terror group?   As Glenn Greenwald writes, there’s not much point to having a Bill of Rights if the government gets to revoke those rights at its whim. But no, Lieberman wants to assure us that suspects would have a right to challenge the revocation of their citizenship in a court—a civilian court, one hopes. Except giving material support to a foreign terror groups is, in fact, a crime.  If there’s enough evidence to persuade a court of law that someone is a member of such a group—congratulations, there’s enough evidence to convict them in the civilian system as well! It’s heartening that there doesn’t seem to be a great deal of support for this odious proposal, but depressing that a sitting senator would treat the rights of citizenship so lightly for the sake of a vapid, strutting display of “toughness.”

Playing Chicken Again

As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.

This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that – it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.

The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.

The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard – commissions for Muslims in America, civilian trials for everyone else – is counterproductive when it comes to defeating terrorist recruiting.

I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:

First, it might work as seamlessly as the bill’s sponsors describe. This could be true if we already have a lot of evidence, the suspect is arrested, temporarily transferred for a short session of non-admissible interrogation, and then kicked back to the civilian criminal justice system (true with citizens, not with aliens). There’s an argument that traditional police interrogations could get the same (or more) information that the military can, because military interrogators do not have the bargaining tools such as snitching on co-conspirators for reduced sentences, plea bargains and the like. I won’t belabor that, since it’s not the point of this post.

Second, there’s the possibility that the military and the intelligence community won’t want to get involved in a lot of these cases, essentially nullification of what Congress would dictate with this bill. The FBI would monitor the communications of someone like JihadJane, have mountains of evidence against her, and have a case that supports the arrest of her co-conspirators overseas. In this case military detention is unwarranted, so the military investigator shows up, decides that the law enforcement agents have the situation in hand, and high-fives them on the way out the door. The bulk of terrorism suspects don’t have a wealth of information about other plots, so mandating military detention is tying the Executive’s hands by making counterterrorism agents jump through additional bureaucratic hoops when they take people into custody. I thought this was something that conservatives oppose.

Mandating military custody gets hairier in real emergencies. Imagine a parallel to the 1993 WTC bombing where the FBI knows that a cell is assembling a bomb but doesn’t sweep up the suspects before the bomb is operational and in a truck bound for its intended target. Agents lose track of the suspects, but quickly locate one of them and take him into custody. The new law would mandate that they first get the guy into military custody before asking him where the bomb is going. Besides creating an incentive to put military investigators (CID, NCIS, or OSI) on every Joint Terrorism Task Force in America (possible Posse Comitatus and 10 U.S.C. 375 issues with this and the rest of the bill), this doesn’t even guarantee that a military investigator is with the agents who capture the suspect that we need information from right now. Under the current “soft-on-terrorism law enforcement approach” the law enforcement agents can question the suspect directly and be assured that the exigency of the situation makes his statements admissible in court via Quarles, where the Court created a “public safety” exception for the post-arrest, pre-Miranda questioning of a rapist who had hidden his gun in a supermarket. A bomb heading toward the federal building or a shopping mall is a bigger threat than a revolver mixed in with the fresh fruit, and courts get this. If the course of action dictated to the people on the ground fails the “ticking bomb” scenario, it ought to be opposed by all armchair counterterrorism experts who take their cues from 24.

The third possibility is a worst-case scenario. Suppose we have an American citizen who gets taken into military custody, gives up a lot of information, but then won’t repeat it when he is kicked back to the civilian law enforcement system. Some will make the case that this is justification for an honest-to-goodness preventive detention system to keep such a person in custody.

This raises the question of constitutionality with regard to holding American citizens as domestic enemy combatants. More to the point, it resurrects the case of Yaser Hamdi with a differently-situated plaintiff. Hamdi was a dual US-Saudi citizen who was captured on the battlefield in Afghanistan. He was brought to the US and kept in a naval brig in Charleston, South Carolina. The Supreme Court heard his case and the plurality held that he could be detained as an enemy combatant, but that some form of administrative hearing was required to balance his liberty interest versus the government’s national security concerns.

Justices Scalia and Stevens dissented and got this case right (agreeing with Cato’s brief). American citizens cannot be held without trial short of suspending habeas corpus, and Congress has not supplied language to comply with the Non-Detention Act when it passed the Authorization for the Use of Military Force after 9/11.

After all, President Bush’s military order of November 13, 2001 directs the Secretary of Defense to detain and try enemy aliens by military commission. The Military Commissions Acts of 2006 and 2009 have not deviated from this language.

The court challenge that results is a return to the Executive playing “chicken” with the courts, and the Executive continuously losing.

Courts will distinguish domestic terrorism suspects from those who participated in hostilities on the battlefield. This was the reasoning behind Jose Padilla’s loss in the 4th Circuit. He had been on the battlefield and escaped, parallel to Yaser Hamdi and the Nazi saboteurs of the Quirin case. This distinguished him from Lambdin Milligan, the post-Civil War domestic terrorist who was ordered out of a military commission and back into the civilian courts.

Even those who disagree with Scalia and Stevens can count votes on the Court. The narrow circumstances in Hamdi are not present here, and the battlefield/civil society distinction has the potential to sway all but two or three of the justices. Kennedy indicated displeasure with the jurisdictional shell game the Bush administration played with Jose Padilla, along with Roberts and Stevens. Souter, Ginsburg, and Breyer voted to hear his case even after he had been transferred from enemy combatant status to federal court.

The bottom line is that this bill mandates treating all terrorist attacks as acts of war and not criminal violations, when some are clearly both. It isn’t bad policy because there is no justification for military force – there is – it’s bad policy because it prohibits a pragmatic legal response to terrorism. If the law enforcement paradigm gets results for the threat, use it. The same goes for the military paradigm. But let’s not pick one over the other for the sake of domestic politics.

Wars, Crimes, and Underpants Bombers

I’ve been meaning to follow up on Gene Healy’s post from last week on the interrogation and prosecution of terror suspects.  I share Gene’s bemusement at the howls emanating from Republicans who have abruptly decided that George Bush’s longstanding policy of dealing with terrorism cases through the criminal justice system is unacceptable with a Democrat in the White House.  But I also think it’s worth stressing that the arguments being offered – both in the specific case of Umar Farouk Abdulmutallab and more generally – aren’t very persuasive even if we suppose that they’re not politically motivated.

Two caveats.  First, folks on both sides would do well to take initial reports about the degree of cooperation terror suspects are providing with a grain of salt. For reasons too obvious to bother rehearsing, investigators won’t always want to broadcast accurately or in detail the precise degree of cooperation a suspect is providing.   Second, as Gene noted, given that it seems unlikely we’ll need to use Abdulmutallab’s statements against him at trial, the question of whether the civilian or military system is to be preferred can be separated from the argument about the wisdom of Mirandizing him. That said, the facts we have just don’t seem to provide a great deal of support for the conclusion that, warning or no, criminal investigators are somehow incapable of effectively questioning terrorists.

Certainly if you ask veteran FBI interrogators, they don’t seem to share this concern that they won’t be able to extract intelligence their military counterparts would obtain. You might put that assessment down to institutional pride, but it’s consistent with the evidence, as the FBI has had impressive successes on this front already. And if you don’t want to take their word for it, you can always ask Judge Michael Mukasey who, before becoming attorney general under George W. Bush, ruled that military detainees were entitled to “lawyer up” – as critics of the Bush/Obama approach are wont to put it – explicitly concluding that “the interference with interrogation would be minimal or nonexistent.”

Nor, contra the popular narrative, does it appear to have interfered in the Abdulmutallab case.  Republicans leapt to construe sketchy early reports as implying that the failed bomber had been talking to investigators, then clammed up upon being read his Miranda rights and provided with counsel. But that turns out to have gotten the order of events wrong. In reality, Abdulmutallab was initially talkative – perhaps the shock of having set off an incendiary device in his pants overrode his training – but then ceased cooperating before being Mirandizied. Rather, it was the urging of his family members that appears to have been crucial in securing his full cooperation – family members whose assistance would doubtless have been far more difficult to secure without assurances that he would be treated humanely and fairly within the criminal justice system. It’s possible, one supposes, that the emo terrorist might have broken still more rapidly in military custody, but it seems odd to criticize the judgment of the intelligence professionals directly involved with the case, given that their approach has manifestly worked, on the basis of mere speculation about the superior effectiveness of an alternative approach.

Stepping back from this specific case, there seem to be strong reasons to favor recourse to the criminal systems in the absence of some extraordinarily compelling justification for departing from that rule in particular cases. Perhaps most obviously, few terror suspects are quite so self-evidently guilty as Abdulmutallab, and so framing the question of their treatment as one of the due process rights afforded “terrorists” begs the question. The mantra of those who prefer defaulting to military trial is that “we are at war” – but this is an analytically unhelpful observation.  We’re engaged in a series of loosely connected conflicts, some of which look pretty much like conventional wars, some of which don’t. This blanket observation tells us nothing about which set of tools is likely to be most effective in a particular case or class of cases – any more than it answers the question of which battlefield tactics will best achieve a strategic goal.

For the most part, the insistent invocation of the fact that “we’re at war” seems to be a kind of shibboleth deployed by people who want to signal that they are Very, Very Serious about national security without engaging in serious thought about national security. If it came without costs, I would be loath to begrudge them this little self-esteem boosting ritual. But conflict with terrorists is, by definition, a symbolic conflict, because terrorism is first and foremost a symbolic act. As Fawaz Gerges documents in his important book The Far Enemy, jihadis had traditionally been primarily concerned with the fight to impose their rigid vision in the Muslim world, and to depose rulers perceived as corrupt or too secular.  The controversial – and even among radical Islamists,quite unpopular – decision to strike “the Far Enemy” in the United States was not motivated by some blind bloodlust, or a desire to kill Americans as an end in itself. Rather, Osama bin Laden and Ayman al-Zawahiri hoped that a titanic conflict between Islam and the West could revive flagging jihadi movement, galvanize the ummah, and (crucially) enhance the prestige of Al Qaeda, perceived within jihadi circles as a fairly marginal organization.

This has largely backfired. But it’s important to always bear in mind that attacks on the United States, especially by sensational methods like airplane bombings, are for terror groups essentially PR stunts whose value is ultimately instrumental. They don’t do it for the sheer love of blowing up planes; they do it as a means of establishing their own domestic credibility vis a vis more locally-focused Islamist groups (violent and peaceful) with whom they are competing for recruits. While our response to these attempts will often necessarily have some military component, there is no reason to bolster their outreach efforts by making a big public show of treating Al Qaeda in the Arabian Peninsula as tantamount to a belligerent foreign state.  Better, when it’s compatible with our intelligence gathering and security goals, to treat Abdulmutallab and his cohorts as just one more band of thugs.

A New Court Term: Big Cases, Questions About the New Justice

Today is the first Monday in October, and so is First Monday, the traditional start of the Supreme Court term.  The Court already heard one argument – in the Citizens United campaign finance case – but it had been carried over from last year, so it doesn’t really count.

In any event, continuing its trend from last term, the Court has further front-loaded its caseload – with nearly 60 arguments on its docket already.  Fortunately, unlike last year, we’ll see many blockbuster cases, including:

  • the application of the Second Amendment to state gun regulations;
  • First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
  • an Eighth Amendment challenge to life sentences for juveniles; a potential revisiting of Miranda rights;
  • federalism concerns over legislation regarding the civil commitment of “sexually dangerous” persons;
  • a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
  • judicial takings of beachfront property; and
  • notably in these times of increasing government control over the economy, the “reasonableness” of mutual fund managers’ compensation.

Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.

Perhaps more importantly, we also have a new justice – and, as Justice White often said, a new justice makes a new Court.  While Sonia Sotomayor’s confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the “wise Latina” speeches that led people to question her commitment to judicial objectivity.  Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent – and the first term is not necessarily indicative.

Key questions for the new Court’s dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right.  We’ve already seen her make waves at the Citizens United reargument – questioning the scope of corporations’ constitutional rights – so it could be that she will decline to follow Justice Alito’s example and jump right into the Court’s rhetorical battles.

In short, it’s the first day of school and I’m excited.