Congressional Sparring Ignores Practical Reasons For Miranda

As lawmakers in Congress duke it out over whether the Times Square bombing suspect ought to have been read his Miranda rights, it's worth considering the real-life impact of reading a suspect his rights - and of withholding them. The consequences of not reading rights to terrorist suspects that we later want to prosecute are now on display at the military commissions in Guantanamo Bay, Cuba. And it's not looking good for the government.

Omar Khadr, whose pre-trial hearing continues, was not read his rights, pursuant to Bush administration policy. Of course, Khadr was captured in Afghanistan, following a deadly shootout with U.S. forces. The Obama administration isn't reading Miranda rights to battlefield captures either.

Withholding Miranda rights makes sense in the heat of a battle, because we don't usually prosecute warriors; instead, we try to defeat their forces, and send prisoners home when the war is over. But once the government decides it may want to prosecute someone and bring him to justice - whether he's captured in an Afghan desert or at JFK airport in New York - there are very practical reasons for informing him of his rights.

In the case of the Times Square suspect, Faisal Shahzad, U.S. officials initially questioned him without reading him Miranda rights, under what's known as the "public safety exception" to the Miranda rule. Statements made in that initial period when the FBI is collecting information about any imminent threats are still admissible in court later. But once investigators determine that the imminent threat is over, they must deliver those Miranda warnings if they want to use any of the evidence they gather from the suspect later in a prosecution. In Shahzad's case, they did - and hereportedly kept right on talking.

That's typical - as Human Rights First's report "In Pursuit of Justice" notes, empirical studies from both supporters and opponents of the Miranda rule have found that giving the warnings has little real effect on whether a suspect speaks to police without a lawyer.

Still, to some, the idea of telling a suspected criminal that he has the right to remain silent sounds kind of silly. After all, why would you want to encourage him not to talk?

But the Miranda rule developed for a very good reason, and has withstood several legal challenges. The Constitution (and the Uniform Code of Military Justice) provides suspects the right against self-incrimination, and the right to the assistance of an attorney. By informing a suspect of those rights, the FBI basically immunizes itself - anything the suspect says afterwards can then lawfully be used against him.

The Miranda rule means the government doesn't later have to spend months arguing in court over whether a suspect's statements were voluntary or coerced, as it's now forced to do in the Khadr case. Because even military commissions forbid reliance on involuntary confessions, except those made at the point of capture or during active combat - a rule that's similar to the federal court's public safety exception.

The Khadr case is a perfect example of how hard it is for the government to show that a suspect confessed voluntarily if he was never told of his right not to.

Khadr, who was 15 when he was captured, claims he was mistreated in custody and coerced into saying things that weren't true. His hearing is ongoing, and although some evidence has emerged to support his claims, it's impossible to know yet what really happened. (As I've explained before, themilitary commission rules make finding the truth in such cases particularly difficult.) But if Khadr can show that he was coerced into confessing, his statements have to be thrown out even under the military commission's rules. That's because coerced statements are considered inherently unreliable - in any U.S. court of law.

To argue that Shahzad shouldn't have been read his Miranda rights, as Senator John McCain (R-Ariz.) did yesterday, makes even less sense than in a case like Khadr's, because Shahzad is a U.S. citizen who cannot legally be tried in a military commission. (Rep. Peter King (R-NY), who reportedly said Shahzad should be tried in a military commission, apparently didn't understand that.) So the result of not reading him his rights after the public safety threat has subsided would be to undermine his subsequent prosecution - and to risk having to let him go free.

Surely Sen. Christopher Bond of Missouri, the ranking Republican on the Senate Intelligence committed, didn't mean to suggest we should free terrorists when he said yesterday that the U.S. has "got to be far less interested in protecting the privacy rights of these terrorists than in collecting information. . . ." But that could be the logical result of the current campaign to deny terror suspects basic rights.

Even Glenn Beck, the conservative Fox News commentator, defended the Obama administration's handling of the case yesterday, saying that "we uphold the laws and the Constitution on citizens....We don't shred the Constitution when it's popular."

Connecticut Senator Joe Lieberman's response to that, of course, was that Shahzad, who hasn't yet been convicted of anything, should be stripped of his citizenship. (In fact, if he were convicted of fighting with an enemy military force he would be stripped of his citizenship anyway.)

Setting aside the many compelling arguments for why the United States on principal shouldn't be cowed by terrorists into abandoning our own Constitution, it's worth remembering that the Miranda rule serves a very important practical purpose: it ensures that suspects' confessions are usable in court against them, and that terrorism convictions in any U.S. legal forum will stand.

Congressional Sparring Ignores Practical Reasons For Miranda

As lawmakers in Congress duke it out over whether the Times Square bombing suspect ought to have been read his Miranda rights, it's worth considering the real-life impact of reading a suspect his rights - and of withholding them. The consequences of not reading rights to terrorist suspects that we later want to prosecute are now on display at the military commissions in Guantanamo Bay, Cuba. And it's not looking good for the government.

Omar Khadr, whose pre-trial hearing continues, was not read his rights, pursuant to Bush administration policy. Of course, Khadr was captured in Afghanistan, following a deadly shootout with U.S. forces. The Obama administration isn't reading Miranda rights to battlefield captures either.

Withholding Miranda rights makes sense in the heat of a battle, because we don't usually prosecute warriors; instead, we try to defeat their forces, and send prisoners home when the war is over. But once the government decides it may want to prosecute someone and bring him to justice - whether he's captured in an Afghan desert or at JFK airport in New York - there are very practical reasons for informing him of his rights.

In the case of the Times Square suspect, Faisal Shahzad, U.S. officials initially questioned him without reading him Miranda rights, under what's known as the "public safety exception" to the Miranda rule. Statements made in that initial period when the FBI is collecting information about any imminent threats are still admissible in court later. But once investigators determine that the imminent threat is over, they must deliver those Miranda warnings if they want to use any of the evidence they gather from the suspect later in a prosecution. In Shahzad's case, they did - and hereportedly kept right on talking.

That's typical - as Human Rights First's report "In Pursuit of Justice" notes, empirical studies from both supporters and opponents of the Miranda rule have found that giving the warnings has little real effect on whether a suspect speaks to police without a lawyer.

Still, to some, the idea of telling a suspected criminal that he has the right to remain silent sounds kind of silly. After all, why would you want to encourage him not to talk?

But the Miranda rule developed for a very good reason, and has withstood several legal challenges. The Constitution (and the Uniform Code of Military Justice) provides suspects the right against self-incrimination, and the right to the assistance of an attorney. By informing a suspect of those rights, the FBI basically immunizes itself - anything the suspect says afterwards can then lawfully be used against him.

The Miranda rule means the government doesn't later have to spend months arguing in court over whether a suspect's statements were voluntary or coerced, as it's now forced to do in the Khadr case. Because even military commissions forbid reliance on involuntary confessions, except those made at the point of capture or during active combat - a rule that's similar to the federal court's public safety exception.

The Khadr case is a perfect example of how hard it is for the government to show that a suspect confessed voluntarily if he was never told of his right not to.

Khadr, who was 15 when he was captured, claims he was mistreated in custody and coerced into saying things that weren't true. His hearing is ongoing, and although some evidence has emerged to support his claims, it's impossible to know yet what really happened. (As I've explained before, themilitary commission rules make finding the truth in such cases particularly difficult.) But if Khadr can show that he was coerced into confessing, his statements have to be thrown out even under the military commission's rules. That's because coerced statements are considered inherently unreliable - in any U.S. court of law.

To argue that Shahzad shouldn't have been read his Miranda rights, as Senator John McCain (R-Ariz.) did yesterday, makes even less sense than in a case like Khadr's, because Shahzad is a U.S. citizen who cannot legally be tried in a military commission. (Rep. Peter King (R-NY), who reportedly said Shahzad should be tried in a military commission, apparently didn't understand that.) So the result of not reading him his rights after the public safety threat has subsided would be to undermine his subsequent prosecution - and to risk having to let him go free.

Surely Sen. Christopher Bond of Missouri, the ranking Republican on the Senate Intelligence committed, didn't mean to suggest we should free terrorists when he said yesterday that the U.S. has "got to be far less interested in protecting the privacy rights of these terrorists than in collecting information. . . ." But that could be the logical result of the current campaign to deny terror suspects basic rights.

Even Glenn Beck, the conservative Fox News commentator, defended the Obama administration's handling of the case yesterday, saying that "we uphold the laws and the Constitution on citizens....We don't shred the Constitution when it's popular."

Connecticut Senator Joe Lieberman's response to that, of course, was that Shahzad, who hasn't yet been convicted of anything, should be stripped of his citizenship. (In fact, if he were convicted of fighting with an enemy military force he would be stripped of his citizenship anyway.)

Setting aside the many compelling arguments for why the United States on principal shouldn't be cowed by terrorists into abandoning our own Constitution, it's worth remembering that the Miranda rule serves a very important practical purpose: it ensures that suspects' confessions are usable in court against them, and that terrorism convictions in any U.S. legal forum will stand.

Where We Can Go from Here

(Proudly cross-posted at Clintonistas for Obama)

I know, I know. It's been a tough week for all of us who care deeply about our Constitution, the foundation of our republic. And yes, I know what's made this week tougher was Barack Obama's agreeing to this capitulation to Bush-Cheney. So what do we do now? Where can we go? How can we put this disappointment behind us?

Follow me after the flip as I discuss where we can go from here...

There's more...

Obama Should Filibuster FISA Law in Senate!

It seems as if we have been debating the FISA Laws forever. It isn't a difficult task in understanding how the thing is supposed to work. The original law was fine as it was, and I believe that the President circumvented the law because of his arrogance, not because the law was too unwieldy. The intent, I believe, was to make the FISA Law that way so any Federal Agency that wanted to eavesdrop on American citizens had to go through the mechanics of justifying the act.

Apparently the Bush Administration thought that the law was outdated for this day and age, so they circumvented the FISA statutes. This is typical of this administration, if you don't like the law, just go ahead and break it. God forbid you work to change the law, break it first and after you have done this deed, ask a compliant Congress to cover-up the crime by changing the law to suit the administration's needs.

The granting of immunity to the telecom industry sets the precedent to grant the President immunity, according to some. That's outrageous! Why should we as a nation allow this administration to break any law it chooses? Where is the "Rule of Law" in this nation? The presumed Democratic nominee took no issue with the House when they changed the law to fit the administration's needs and with that, granted immunity to the telecom industry for breaking the law, along with the executive branch. Senator Barack Obama told the nation that he will remove the immunity provision when it gets to the Senate. What I would like to know is how can Obama insure that the immunity provision of the bill is rescinded? It would be a neat trick if he were the sitting President, but being a junior Senator, the prospect of providing a veto-proof rescission of the immunity clause is a hell of a thing to tout. If he can even stop the bill from passing through the Senate with the immunity clause intact that would be enough.

There's more...

Mitch McConnell and Kit Bond: Lets shred the Constitution

Well, it looks like Mitch McConnell and his disciples in the Congress are once again attempting to shred the Constitution, and asking the American people to give up generations of Constitutional protections because he and George W. Bush are acutely incompetent. As we all know, the NIE came out the other day and showed serious problems. Instead of addressing these problems, Mitch McConnell and the Republican leadership would rather ask us to shred our Constitution. Lets look at McConnell and Bond's proposals:

There's more...

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