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Conservatives Play the Miranda Canard

Eager to score Willie Horton points, conservative Republicans have aimed their fire at three points about the handling of the arrest and interrogation of Farouk Abdulmutallab, the alleged underpants bomber. Each point has been remarkably wrong on the facts that underpin their critiques. More importantly (as the fact change from case to case), they have been wrong on the law.

Eager to score Willie Horton points, conservative Republicans have aimed their fire at three points about the handling of the arrest and interrogation of Farouk Abdulmutallab, the alleged underpants bomber. Each point has been remarkably wrong on the facts that underpin their critiques. More importantly (as the fact change from case to case), they have been wrong on the law. Either they simply don’t understand the doctrines that have developed around the Miranda decision, or they do and they simply want to score points, which excoriate law enforcement no matter which administration is in control of those law enforcement personnel and the decisions they make.

What follows is an attempt to deconstruct their arguments into the three assertions made by political operatives and conservative journalists. Each will be addressed based on current Miranda law and assessed for tactical significance within that framework.

Abdulmutallab was not an American citizen, so why be concerned about reading him Miranda rights?

The most widely disseminated assertion on this point was made in Newt Gingrich’s appearance on “The Daily Show.” Gingrich argued to Jon Stewart that Abdulmutallab was not an American citizen and did not need to be read Miranda rights. Stewart pointed out that Richard Reid, the airline shoe bomber, was arrested during the Bush administration and he was read Miranda rights. Gingrich responded that the difference in handling of the otherwise similar cases had to do with Reid being an American citizen while Abdulmutallab was not.

On that point, Gingrich was, of course, wrong on the facts: Reid was a British citizen.

Lost in the shuffle (and now with greater focus on citizenship due to the kerfuffle created by Gingrich) is this point: in addition to being wrong on his factual premise, Gingrich was wrong on the law.

The argument is premised on an a misconception: that only American citizens must be read Miranda rights and noncitizens need not be read the rights. Such an assertion is dead wrong. Miranda does apply regardless of the citizenship of an arrested suspect. Anyone detained or arrested, and then questioned, must be read Miranda rights if any statement obtained is to be used in a criminal prosecution thereafter. (More on that limiting condition below.)
Abdulmutallab was an enemy combatant entering the US, so – his citizenship aside – he should not have been read Miranda rights. Again, wrong on the facts and, therefore, wrong on the law.

Abdulmutallab was arrested on American soil in the city of Detroit so the extraterritorial application of Miranda to enemies in foreign countries is not an issue. The last three decades have been rough for Detroit, but despite its economic troubles, it is still located in this country.

What’s more, while it may not be a dead certainty that any American citizen arrested in a foreign country must be Mirandized, previous administrations have always believed it to be both legally and strategically prudent to do so. For example, John Lindh, sometimes dubbed the American Taliban, was the first and paradigmatic case of an arrested enemy combatant. Lindh was arrested and then questioned by an FBI agent while in custody near an Afghan battlefield. The agent first read Lindh his Miranda rights.

Strategically, the fact that Lindh was read his Miranda rights ultimately redounded to benefit the Bush administration’s prosecution of Lindh. When American law enforcement tactics with Lindh were questioned, Attorney General Ashcroft and the Justice Department relied heavily on the fact that the FBI agent had given Lindh Miranda warnings showing their concern for honoring Lindh’s constitutional rights. That moment where – despite substantial abuse for days before hand, a bullet in his leg and a long period of isolation being held in a shipping container – Lindh was told he could remain silent and had a right to an attorney, and he waived his rights, meant that he had been accorded all the due process and fair treatment the law required. Had he not been given the Miranda warnings (and, therefore, they could not be pointed to as the gold standard for fair treatment), there would have been a considerably greater cloud placed over any statements obtained from Lindh. It was those statements from a Mirandized interrogation that contained the case against Lindh and were the most valuable pieces of evidence against him regardless of whether he was tried in a civilian or a military court. There were few eyewitnesses and little other evidence regarding his participation in activities with the Taliban. Without the Miranda incantation to cleanse and dress up the circumstances for his interrogation, the government would have had a very hard time getting the convictions they obtained by a guilty plea.

Reading Abdulmutallab his Miranda rights risked depriving law enforcement and intelligence agencies access to Abdulmutallab in a critical period after his arrest.

First, those who assert this point reveal their ignorance of the existence of a “public safety exception,” which permits questioning without Miranda in emergency situations. In the Quarrles case years ago, the Supreme Court recognized that there will be times when immediate questioning without giving the rights and obtaining a waiver would be justified by an imminent emergency dangerous to the safety of others. In such situations, the Quarrles Court recognized, law enforcement agents need not stop to weigh whether by questioning before getting a waiver of Miranda rights they may risk statements being rendered inadmissible in a criminal prosecution.

Quarrles concerned the need to find a gun that may have been tossed in among some fruit by a pursued suspect during a chase and arrest in a supermarket. Quarrles acknowledgment of the location of the gun was not suppressed because of the perceived emergency need to find the gun in the bananas before a customer might encounter it. If the Supreme Court deemed such a find-a-gun-in-the-bananas situation an emergency obviating the need for Miranda warnings, surely determining whether other plots against airliners were afoot would be sufficient as an emergency and the Quarrles emergency questioning doctrine would apply.

Whether the law enforcement authorities at the Detroit airport were aware and willing to question without administering Miranda warnings is unknown now. Quarrles loosened restrictions on Miranda warnings being read need to be more broadly understood. But that is only one reason why the misunderstanding of Miranda being bandied about is so misguided. The other reason goes far more to the core of the Miranda decision as it is related to terrorism prevention.

The decision to read Miranda is a decision independent of the view of the police investigator as to whether he is facing a criminal terror suspect or a war terror suspect. Just as the FBI chose to read the warnings to Lindh, who carried a rifle and grenades in fighting with foreign forces in a foreign country, law enforcement officials can still question suspects after they have invoked the right to silence or an attorney that is covered by Miranda.

The consequence of a post-Miranda invocation requesting an attorney (assuming that the suspect even invokes the right to silence – something that the vast majority of suspects don’t do in the misguided belief they best try to talk their way out of trouble on the spot) is simply that post-invocation statements cannot be used in the prosecution’s case in chief in a subsequent criminal trial.
But, with 200 plus witnesses and singed underpants for a jury to consider, little evidence for criminal trial purposes is needed. Nothing constrained either law enforcement officials or intelligence agents from questioning Abdulmutallab, regardless of whether he chose to exercise his right to silence or an attorney after being told of those rights in a Miranda warning. The only reason to give the warning was to preserve the admissibility for any statements Abdulmutallab might make. But that reason is not of great importance for terrorism prevention purposes, and those purposes can still be pursued by law enforcement agents.

Law enforcement agents have questioned arrested persons who were members of vicious street gangs, the Mafia and thousands of other domestic and foreign criminal syndicates. They are deeply experienced, well trained and professional in using psychological techniques and legal pressure (e.g. a sentence reduction) to obtain statements while remaining within the mild constraints of the Miranda rules. Hardened criminals much more resolute and dangerous than young Abdulmutallab “flip” or “snitch” all the time and provide information for further investigation of their confederates’ plans or for use in future prosecutions.

Ironically, there are many reports that, indeed, Abdulmutallab has flipped and is providing extensive information to government interrogators. It is regrettable that conservatives seeking to politicize law enforcement tactics are unwilling to assume that the same tools law enforcement professionals routinely use against other criminal conspiracies cannot be deployed as effectively by trained professionals in response to future Abdulmutallabs who set forth as jihadists. But it appears that extending an assumption of professional competence to law enforcement carrying out the arrest and interrogation risks giving up a desired political argument even if the argument unfairly demeans police and prosecutors and even if the arguments distort or misrepresent the law.

The relative lack of hysteria about an upper-middle-class young jihadist from Marin County, whose father was an attorney, and who was represented by both James Brosnahan and Tony West (the current head of the civil division of the Obama Justice Department) in comparison to the reaction to Abdulmutallab. Does the latter – due to country of origin and dark skin color – make him scarier to the American people than a “Marin hot tubber” (as President Bush termed him so benignly then) or even Reid, a light skinned British citizen? Of course, Reid was “brought to justice” in a largely forgettable and routine prosecution in federal court. Lindh even has a growing cadre of supporters who favor his early parole, after serving 9 years of a 20 year sentence. Something – if not skin color, then political opportunities – must explain the difference in reaction.

Jane Mayer, for New Yorker Magazine, wrote:

On December 9th, an F.B.I. agent assigned to Pakistan, Christopher Reimann, began extracting the confession from Lindh that became the basis for the criminal case. The encounter took place at Camp Rhino, a Marine base near Kandahar. Lindh, still blindfolded and handcuffed, was taken from his steel container to a nearby tent. Lindh’s blindfold was removed. Reimann flashed his F.B.I. badge, and began to question Lindh. Reimann read Lindh the Miranda warning. But, when noting the right to counsel, the agent now acknowledges, he ad-libbed, “Of course, there are no lawyers here.”

“I told him that if he wanted a lawyer the interview would end right there,” Reimann said in a phone conversation. “He’s an adult, he had the opportunity to make that decision.” At no point did Reimann mention that Lindh’s family had hired counsel for him. Under these circumstances, Lindh, still in handcuffs, signed a waiver of his right to counsel.

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