Nothing exposes the vacuity and hypocrisy of Republican politicians like a fresh terrorist arrest.  The apprehension of The Times Square bomber, one Faisal Shahzad, a newly naturalized US citizen born in Pakistan, has inspired the Right to dust off their melodramatic (and inaccurate) views on how to best deal with terrorists.  Among their knee-jerk reactions to the current administration’s handling of person’s suspected of terrorist acts, one of their most emotional objections has to do with the reading of Miranda Rights before interrogating terror suspects. 

The usual politicized anti-terrorist grand-standing that has been trotted out several times over the past year has been considerably complicated, this time around, by the fact that Mr. Shahzad is, indeed, an American citizen (the real kind, not the Richard Reid shoe-bomber kind) apprehended on US soil.   Mr. Shahzad’s US citizenship has so complicated things, in fact, that several GOP Congressmen have suddenly found themselves at odds with Glenn Beck, whose self-proclaimed role of “Defender of the Constitution” has forced him to come out on the side of human rights for a change.

Here’s a sampling of comments on the arrest of Faisal Shahzad:

According to Politico, who asked Rep. Peter King whether Mr. Shahzad deserved Miranda rights, King’s answer was: “I know he’s an American citizen, but still . . . ’’

But still?  I guess Rep. King is in favor of a more ad hoc judicial system than the one we’ve been using all along.  One where circumstances, or public opinion, change the level of rights to which a suspect is entitled.

Sen. John “Hang ‘em High” McCain had this to say to CBS News about reading Shahzad Miranda rights:

 “Don’t give this guy his Miranda rights until we find out what it’s all about.”

Sounds like McCain needs a little basic law refresher – the whole point of Miranda is that a suspect understand his/her rights before being interrogated, not “arbitrarily somewhere along the line after we get the good stuff.”  McCain doesn’t seem to be aware that information gained before Miranda rights are read is routinely ruled inadmissable by American courts.  In his rush to judgment, McCain is actually advocating a course that could weaken the US case against Shahzad.  Being a military man, McCain might actually prefer to see Shahzad tried by a Military Tribunal which would eliminate the need for Miranda Rights.  However, that won’t be happening unless the famous Military Commissions Act of 2006 is amended; as written, only noncitizens can be tried by a military commission.

Never to be outdone, Sen. Joe Lieberman decided to go even further right than McCain or King by proclaiming, on Fox News that:

“It’s time for us to look at whether we want to amend that law to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.”

There’s so much that’s utterly ridiculous and untethered-to-fact in that statement that, in the interest of space, I can’t go fully into it here.  Suffice it to say that the Gentleman from Connecticut believes it would be a good idea to strip citizenship from anyone suspected of certain crimes, or even for hanging out with the wrong crowd.  Due process be damned!

 Despite all of the foregoing sturm und drang, the actual issue at hand is far simpler and, aside from its usefulness in scoring political points among the ignorant and ill-informed there is little to no real foundation for launching a debate on the prudence of “Mirand-izing” terrorist suspects.

Before I lay out a few “facts” on the Miranda Rule, I’d like to remind everyone that these are the elected Representatives, whose salaries we pay, to legislate on our behalf.  If their comments, above, are any indication of their fitness to carry out their duties – God help us all!

If It’s Good Enough for Cagney & Lacey . . .

So.  Unless you live in a media-free zone, and/or have had the presence of mind to stay out of trouble with law enforcement, you have some idea what the Miranda Rule is about.  Most folks have received their Miranda education from police procedural TV series, reality shows like Cops and movies.  The cops in such dramas are forever spouting “you have the right to remain silent . . . etc., etc.”  It is the audience’s cue that the wheels of justice are groaning into action, it is the well-recognized handoff, on Law and Order, between the “cop” cast and the “DA’s Office” cast.  By now, everyone knows that cops scowl and whisper Curses! Under their breath when suspects demand counsel before talking.  The whole phenomenon has become so entrenched in American culture that it has its own euphemism “Lawyering up.”

In a nutshell, Miranda v. Arizona (1966), like Roe v. Wade in its own right, is one of the most popularly recognized Supreme Court case rulings in American history, (most Americans without legal training can name 1 or 2 Supreme Court rulings, on a good day).  It came about because Ernesto Miranda’s conviction for rape was overturned, by the Supreme Court, because he wasn’t properly advised of his rights before he confessed to the crime.  Miranda was eventually retried and convicted then stabbed to death four years later.  The Miranda due process rights inform a suspect, in a uniform way, of their right to remain silent, that anything they say may be adversely used, and that they have a right to an attorney.  Miranda was one of several criminal justice reforms handed down by the Earl Warren Supreme Court.

As with any slice of “real life” that finds its way into the culture via theatrics, the American general public’s understanding of the actual Miranda Rule is sketchy and overdramatized.  One of the biggest misconceptions that bubbles to the surface whenever the debate over Mirand-izing terrorists comes up is that Miranda should only be applied to US citizens; furthermore, if a terror suspect happens to be a US citizen, maybe not that US citizen.  Miranda affords due process rights to any person falling under US jurisdiction, citizens and non-citizens alike.  The general idea is that America is a nation of laws that uphold basic human rights; while we expect non-citizen visitors to our country to abide by those laws while in the US, we, in turn, guarantee that we will provide them with the protections under that rule of law while they are under US jurisdiction.  That’s a fact, not debatable.

Lest anyone argue that Miranda is a new age idea or a piece of Lefty judicial activism that departs from the Founders intentions in writing the Constitution, here’s what James Madison had to say on the matter:

“ . . . it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage.

“If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.”

Somewhere in time (1896), between Madison and the Warren Court, the Supreme Court ruled in Wong Wing v. U.S. that:

“Aliens might be deportable for their speech (see here for more on that question), but they can’t be otherwise punished for it, nor can they be criminally prosecuted in the civil justice system without the normal constitutional protections”

(h/t Volokh)

The Right of the Accused are not a sentimental or emotional issue to be applied ad hoc, it is settled law. 

There’s Always an Exception

There is one exception to Miranda and that is the so-called “Public Safety Exception” handed down by the Supreme Court (New York v. Quarles), subsequent to Miranda, for situations where a threat to public safety compels the police to question a criminal suspect immediately.  That case dealt with a situation in which a suspect arrested on suspicion of rape was found to be wearing an empty shoulder holster while being handcuffed at the scene.  Police immediately asked him where the weapon was and the suspect pointed to a pile of empty boxes in the supermarket where he had been apprehended.  He was then read his Miranda rights, which he waived, and admitted that the gun was his.  The Court ruled that allowing the gun to be left at the scene would have presented a time-sensitive threat to public safety that trumped the reading of Miranda.

According to Attorney General Holder, that is exactly the way the FBI conducted its interrogation of Shahzad; he was questioned for a time, under the Public Safety Exclusion, to ascertain that there were no other imminent attacks that he knew of and was then read the Miranda Rights which he chose to waive.

Another weird misconception that trolls through this debate is the notion that reading Miranda Rights somehow bestows those rights and that not reading Miranda somehow withholds the rights of a suspect.  That’s just downright wrong.  The reading of Miranda Rights does not invent or bestow rights in any way, it simply advises the accused of his/her inherent rights, as guaranteed by the US Constitution, to anyone accused of a crime under US jurisdiction.

My suspicion is that Republicans are not so much ignorant of the law as they are counting on the American public’s varying levels of ignorance of or indifference to the law, as well as their emotionality and suggestibility.  The debate on reading terror suspects their rights is just irresistibly low-hanging fruit.  It’s a two-fer for the GOP, not only do they get to beat their chests over how tough they are on terrorism but, at the same time, they get to suggest how badly we need to exorcise the ghost of Earl Warren and make sure that no more bleeding heart, judicial activists are ever appointed to the US Supreme Court again.

In my opinion this is the slipperiest of slopes far more of a threat to “national security” than some of the boogeymen that have been paraded in front of us to make political hay.  Back in November of last year, Tommy Crocker wrote an opinion, for opiniojuris.org, of Sen. Lindsey Graham’s unsuccessful attempt to forbid federal court trials for 9/11 suspects; Crocker states the warning about such ill-conceived moves. far better than I could, in the final paragraph of his article entitled, “Does Anyone Deserve Constitutional Rights?”

“There seems to be implied or underlying claim about moral desert.  This thought appears in a statement attributed to Sen Lindsey Graham, who sought (and failed) to have Congress forbid federal court trials of 9/11 suspects.  He claimed that “terrorists don’t deserve the same constitutional rights as U.S. citizens.”  Why not?  Any person we seek to punish criminally for heinous acts against U.S. persons, places, or interests “deserves” the protections afforded by a society dedicated to the rule of law.  Since Sen. Graham advocates the use of Military Commissions, he is not claiming that terrorists don’t deserve any legal protections—just not robust constitutional ones.  If this is correct, then for me it is an entirely new claim that does not depend on issues of military necessity, territoriality, trial pragmatics, or national security.  It depends on a judgment that persons accused of terrorism deserve something less than robust criminal procedure protections.   It also has a remote and troubling relation to national security.

“To go down this path is to go down the path of varying human rights protections based on moral judgments about who deserves them.  On this score, we make no further distinctions than to say that if anyone deserves them, we all do.” 

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