February 2, 2010

The Underwear Bomber and “Miranda Rights”.

Filed under: Uncategorized — Jim @ 8:35 pm

I have read numerous news stories that deal with the reading of “Miranda rights” to terrorists, specifically in connection with the capture of Umar Farouk Abdulmutallab, the Underwear Bomber, and the reading to him his “Miranda rights”.

I have a few thoughts on this off the top of my cruller.

The sloppy use of the term “Miranda rights” might lead one to conclude that the Supreme Court, in Miranda v. Arizona, 394 U.S. 436, conferred on criminal defendants the right to remain silent and the right to be represented by an attorney during custodial questioning. As I have written before, the Supreme Court in Miranda did not confer those rights.

Rather, the “right” conferred upon a criminal defendant in that case was the right to be informed of, or reminded of those rights that already belong to the defendant by virtue of the U.S. Constitution’s Fifth Amendment (right not to bear witness against one’s self) and the Sixth Amendment (the right to an attorney). As such, reading a defendant his/her Miranda warning presupposes the existence of those rights in the first instance.

We now know that Eric Holder and The One someone in the Obama administration decided that Umar Farouk Abdulmutallab, the Underwear Bomber, would be tried in criminal court, much as if he had been caught holding up a local gas station. We also learned that he was questioned for fifty minutes before he was read his “Miranda rights” the Miranda warning and, after that, he refused to answer any more questions.

What are we to make of this?

The reading of the Miranda warning to Abdulmutallab, a foreigner who was trained and equipped by an enemy of the United States and who was caught in the act of trying to blow an airliner out of the sky, presupposed that he enjoys the constitutional rights afforded by the Fifth and Sixth Amendments. Assuming that an enemy combatant enjoys such rights is, at best, a novel legal proposition and, at worst, a reckless mistake. I come down on the side of reckless mistake.

If, for the sake of argument, we assume that Abdulmutallab has rights under the Fifth and Sixth Amendments of the Constitution and, as such, was entitled to the Miranda warning, that means that he was entitled to the warning from the moment he was placed in custody. If that is so, what is the value of the information he may have provided during those fifty minutes when he was questioned without having received the Miranda warning?

One thing is for sure, and that is that none of the information he provided during those fifty minutes can be used against him at trial, nor can any information that flowed from his statements during those fifty minutes be used against him at trial. Any conviction of Abdulmutallab will have to rest on other evidence, such as eyewitness testimony of his actions and expert testimony regarding the explosives and their potential consequences.

The statements he may have made during those fifty minutes may be used to capture other persons he may have identified and may be used may be against them at trial (assuming such statements are not deemed inadmissible for some other reason), but they may not be used to convict Abdulmutallab.

Thus, if the Administration truly believed that Abdulmutallab was entitled to the Miranda warning (I don’t believe he was), the warning should have been given as soon as he was placed in custody. If the Administration believed he was entitled to the Miranda warning, but decided to question him to get information on others (knowing they would have to rely on non-testimonial evidence to convict him), then the warning should not have given to him in the first instance in order to extract as much information about from him about other parties as possible.

The bottom line is that this was a complex issue of law and strategy deserving of careful thought, and it appears that careful thought was in short supply on the part of the Administration.

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