The last two terror plots attempted (and failed) within the U.S., the "underwear bomber" and the Times Square car-bomber both have caused a stir on the right in the way law enforcement has handled the suspects. The issue (because apparently it's even worth debating) is whether or not these suspects should be read their Miranda warnings, thereby cluing them in to the fact that they "have the right to remain silent" once they've "lawyered up." As pointed out in a Huffington Post piece, this debate is, essentially, between civil liberties and national security (a serious rock-and-a-hard-place situation for any conservative).
The first point to make in this situation is this: I've never worked for the FBI, but I assume they've figured out at this point how to interrogate suspected terrorists and how to extract as much useful information as possible in a lawful manner. If they feel that they can interrogate a suspect after they've been read their Miranda warnings, I assume it's because they realize that a) they can still gain actionable intelligence at that point (as Shahzad has proven); and b) it sets up the Prosecutor with a much less sticky situation once he winds up in court. No matter how much evidence you've built up against someone, having failed to Mirandize them could very well ruin your case by not allowing you to use important admissions against the defendant.
Second, and ultimately more important, is this: while I can understand (though vehemently disagree) with someone's argument against Mirandizing Abulmuttalab, right away, Shahzad is an American citizen. Possibly more important than even that is the fact that he hasn't been found guilty of anything yet! I understand that he's confessed and that it's almost certain that he left the truck with the bomb inside, but we don't decide who is afforded their constitutional rights by how heavily the evidence weighs against them, we simply afford everyone their constitutional rights. This is, surprisingly, a time when Glenn Beck and I actually agree (frighteningly enough). If John McCain would rather live in a country where civil liberties as important as the right to have an attorney present at your questioning are doled out on a sliding scale and weighed against national security issues, there are a few countries he could move to and live (un)happily. However, as I- and just about every legal scholar- read the Constitution, the United States is not one of those countries.
The first point to make in this situation is this: I've never worked for the FBI, but I assume they've figured out at this point how to interrogate suspected terrorists and how to extract as much useful information as possible in a lawful manner. If they feel that they can interrogate a suspect after they've been read their Miranda warnings, I assume it's because they realize that a) they can still gain actionable intelligence at that point (as Shahzad has proven); and b) it sets up the Prosecutor with a much less sticky situation once he winds up in court. No matter how much evidence you've built up against someone, having failed to Mirandize them could very well ruin your case by not allowing you to use important admissions against the defendant.
Second, and ultimately more important, is this: while I can understand (though vehemently disagree) with someone's argument against Mirandizing Abulmuttalab, right away, Shahzad is an American citizen. Possibly more important than even that is the fact that he hasn't been found guilty of anything yet! I understand that he's confessed and that it's almost certain that he left the truck with the bomb inside, but we don't decide who is afforded their constitutional rights by how heavily the evidence weighs against them, we simply afford everyone their constitutional rights. This is, surprisingly, a time when Glenn Beck and I actually agree (frighteningly enough). If John McCain would rather live in a country where civil liberties as important as the right to have an attorney present at your questioning are doled out on a sliding scale and weighed against national security issues, there are a few countries he could move to and live (un)happily. However, as I- and just about every legal scholar- read the Constitution, the United States is not one of those countries.
6 comments:
It's hard to keep track, but for terrorists it's 5th amendment, no; 2nd amendment, yes.
The thing they overlook is that there's actually a legitimate debate on how the 2nd Amendment should be interpreted, whereas Miranda jurisprudence and the 5th Amendment are pretty clear.
I agree that the times square suspect is entitled to 5th amendment protections. He's a citizen. I'm not convinced that the christmas bomber is or should be entitled to constitutional safeguards. He's a foreign citizen. Why do you think that he is or should be entitled to those rights?
The 5th Amendment says that "No person shall...be compelled in any criminal case to be a witness against himself." The 14th Amendment mentions that there exist "privileges or immunities of citizens of the United States." The difference between "person" and "citizen" leads one to believe that the two weren't used interchangeably by legislatures drafting constitutional amendments. If that's the case, then the 5th Amendment protections were meant to apply to all persons facing criminal trials, not just citizens.
is there a SCt or fed app ct decision that has held that fifth amendment rights have to be extended to foreign nationals?
A cursory search turned up U.S. v. Bin Laden where the S.D.N.Y. ct. extended 5th Amendment rights even to a foreign national interrogated abroad by U.S. law enforcement. Appellate cts. have construed this narrowly to exclude civil cases, but it's a sensible reading of the 5th Amendment that it should cover "persons" and not just "citizens."
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