Miranda rights for attempted plane bomber?

One right-winger worries, wrongly, about consequences of following civilian legal procedure


Alex Koppelman
December 29, 2009 4:45AM (UTC)

Sometimes, it seems you could set your watch by Michael Goldfarb. The Weekly Standard writer — who served in the McCain press shop last year — can always be counted on to come forward to express concerns about nearly everything the Obama administration does, especially if it relates to terrorism. He didn't miss his cue following the attempted bombing of Northwest Flight 253, either.

In a post on the Standard's blog Monday, Goldfarb expressed his displeasure at the fact that Umar Farouk Abdulmutallab has been charged in civilian court.

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"Of course, we ... don't get to interrogate him to find out who he was working with and what other plots are out there," Goldfarb wrote, continuing:

If he were treated as an enemy combatant and transferred to military commission system, we could use Army Field Manual techniques without Miranda (not as effective as enhanced techniques, of course, but much better than standard police practice). We could use his non-Mirandized statements against him in military commissions, so long as the statements were not forcibly coerced and were otherwise reliable.

This isn't the first time conservatives have expressed concern over the possibility of Miranda rights for accused terrorists. After the Obama administration announced that some detainees from Guantánamo Bay would be brought to the U.S. to stand trial, Rush Limbaugh seized on that theme. He even played civil libertarian, saying:

Now, think about something here. There are going to be a lot of precedents set in this trial. For example, let's just look at Miranda. Right now, every suspect has to be read his rights and is told he doesn't have to say a word, that he can get a lawyer.

But if he says something, it can be used against him. Now, if these clowns, if these terrorists are convicted without having been Mirandized, what does that precedent set? If he can be convicted without being Mirandized, if he didn't get his habeas corpus rights, can't they then be denied to us in the future, under this precedent? Well, but they're being given every constitutional protection as though they were citizens. See, this is the point. They get Mirandized, or they don't get Mirandized, and they get convicted. So a precedent is set that suspects do not need to be Mirandized and they can still be found guilty. Okay, so then you end up in the court system, and they don't Mirandize you, and you say, "Wait a minute, I wasn't Mirandized!"

This whole worry is rather silly; it stems from a misunderstanding of the basic principles underlying the Miranda warnings. The part of those warnings that's relevant here deals purely with the right against self-incrimination; it stems from the portion of the Fifth Amendment that reads, "No person shall ... be compelled in any criminal case to be a witness against himself." The typical Miranda warning similarly specifies, "You have the right to remain silent. Anything you say or do can and will be used against you in a court of law." (My emphasis.)

All this is intended to prevent people from involuntarily testifying against themselves in a criminal trial. If law enforcement doesn't care about using a suspect's statements in court, they can interrogate that person without ever reading them their rights; they just can't use any incriminating information at that person's trial. Moreover, again, it's a right against self-incrimination — if a suspected terrorist gives up information about fellow conspirators before being properly Mirandized, that information is admissible.

So what does this mean for Abdulmutallab? Well, it means that — assuming prosecutors are satisfied with the array of charges currently available — law enforcement would technically never even have to Mirandize him. They don't need a confession in order to convict him; he already pretty well incriminated himself by trying to blow up his crotch in front of a bunch of witnesses.

There's another flaw in the logic used by Goldfarb, Limbaugh and others. The Miranda warnings inform someone of his or her rights, no more — interrogation doesn't magically stop at that point. The person in custody still has to exercise those rights. And in this case, it appears that Abdulmutallab has already started talking about some associates.

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Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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Terrorism Torture Umar Farouk Abdulmutallab War Room

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