Friday, June 19, 2009

Miranda Goes To War (Part III: From Arizona to Afghanistan)

I concluded Part II of this series with a question: Whether Miranda is strong enough to support its present incarnation in the wilds of foreign lands when applied to the very different world of irregular fighters, Islamic guerillas, and enemy combatants engaged in jihad against the United States.

To answer this question we have to examine the seeds Miranda has sown.

Is Miranda still good law?

Beginning immediately after the decision was rendered in 1966, it was subject to withering attacks. Among them, as Justice Harlan had said in dissent, was that Miranda was simply “poor constitutional law.” For example, it was argued that the decision was not really constitutional law at all, but merely a rule of evidence which could be overridden by an act of Congress—especially 18 United States Code Section 3501, enacted by Congress in the wake of Miranda, which reestablished “voluntariness” as the touchstone of a custodial statement’s admissibility.

This argument was tested in the late 1990s, when the United States Court of Appeals for the Fourth Circuit ruled in United States v. Dickerson that the test of an interrogation-produced statement was “voluntariness,” of which Miranda warnings were but one element.

The Supreme Court took the case, and ruled in Dickerson v. United States, 530 U.S. 428 (2000), that Section 3501 could not trump the Miranda ruling, and that the absence of warnings excludes an interrogation-produced statement.

Miranda is very much the law of the land.

Are Miranda warnings being given outside the United States

Stephen F. Hayes reported in the June 22, 2009 edition of The Weekly Standard that:

. . . according to Representative Mike Rogers, a Republican from Michigan and a senior member of the House Intelligence Committee . . . the FBI has been reading Miranda rights to high-value detainees at U.S. detention facilities in Afghanistan. Rogers, a former FBI special agent and U.S. Army officer, interviewed interrogators at those detention facilities on a factfinding trip he took to Afghanistan in late May.

Officials from intelligence and law enforcement agencies explained to Rogers that they had been told to read high-value detainees their Miranda rights.

On June 9, 2009 the Department of Justice (DOJ) confirmed the practice.

Some “detainees” (think Taliban, alQaeda, guerillas, irregulars, enemy combatants; think rapists murderers, killers, terrorists) are being Mirandized.

Why are Miranda warnings being given outside the United States?

According to Mr. Hayes, in mid-June an Obama-administration DOJ spokesman made several statements about the practice. First, several Mirandizings occurred in Afghanistan “before January 20, 2009” (think “Bush did it!”). The spokesman continued: “The determination whether to Mirandize a terrorism detainee is made strictly on a case-by-case basis by career [FBI?] agents and prosecutors, in consultation with other relevant agencies. If, based on that consultation, it appears that national security may best be served by prosecuting that detainee, or at least preserving the prosecution option, the detainee may be Mirandized to ensure that his/her statements are admissible at trial and that the detainee can be brought to justice.”

It boggles the mind how “national security may best be served” by inserting war fighters, admitted by DOJ to be “terrorists,” into our domestic criminal justice system, rather than incarcerating them as enemy combatants until the end of hostilities—a practice approved even by the current Supreme Court.

But inserting terrorists into our federal criminal courts—along with mafia soldiers, corporate executives, wire fraudsters, and the likes of Martha Stewart—is entirely consistent with Obama’s and his cohort’s weak-kneed, conciliatory approach to terrorism, viewing it as merely a criminal pastime.

Miranda warnings are being given to terrorists because Obama and most Democrats (and some Republicans) see them not as terrorists, but rather as run-of-the-mill criminals—and after all, the Supreme Court requires those folks to be Mirandized.

Will this Miranda-on-steroids cease?

In a word, “no.”

You’ll recall that in the cases I’ve examined in this essay, objections to the non-Mirandized statements were made by the defendants and opposed by the government. There were two sides.

Now, however, there is only one: the terrorists who want to be Mirandized and the government who wants them Mirandized. There is no one to complain.

And even if someone did complain in a legal forum, as to the Supreme Court putting an end to this self-destruction remember the 2000 Dickerson decision not only reaffirming Miranda but constitutionalizing the rule it promulgated. Remember also that Justice Kennedy, who has not been stalwart enough in national security cases, is still on that bench. And remember we’re watching the ascension to the Supreme Court of either Sonia Sotomayor or a reasonable facsimile.

How about the voters making a stand? Apart from there being no congressional elections for another eighteen months and no presidential election until November 2012, there’s what Michael Barone recently referred to as “the sloppy over-generosity of the American people. Except when aroused and alert, we have a tendency to be fat, dumb and happy, and want to spread that happiness around. So, hey, let’s give these detainees more rights than they’re entitled to under the Geneva Conventions. It’ll make us feel generous, and maybe it will make them like us.” (Jewish World Review, June 16, 2009.)

When we do—and we’re well on our way to doing just that—having sowed the wind, we shall surely reap the whirlwind.