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MirandaPosted Thursday, May 13, 2010, at 6:57 AM
There have been four incidents of domestic terrorism since the Bush Administration left office. With each of these events, there has been controversy surrounding whether to read these terrorists their Miranda rights. The current policy seems to be to interrogate for a while first, then advise the suspect of his rights, then interrogate some more.
What's the controversy about Miranda?
In 1966 the United States Supreme Court ruled that before a suspect can be interrogated he must be advised that he has certain rights under the Fifth Amendment to the U.S. Constitution. Those rights include the right to not testify against your self (remain silent) and the right to have an attorney. Failure to advise the suspect of these rights could result in any evidence obtained by the questioning being excluded at the suspect's trial.
Law enforcement does not have to read you your rights. That is a myth perpetuated by TV cop shows. An officer can stop you, converse with you, and even arrest you without Mirandizing you and any information you volunteer can still be used against you. You SHOULD be read your rights before an interrogation. But if that is not done, the only consequence is that the information given before you are advised of your rights will be excluded as evidence against you.
So, now we capture someone who has committed, or attempted to commit, a terrorist act. Should he be read his rights?
That depends on what you are trying to do. If your primary goal is to criminally prosecute a suspect in a civilian court, questioning without Mirandizing will jeopardize the prosecution. If prosecuting these guys is our goal, why are we questioning them for thirty minutes to four hours without Mirandizing. Most of any post Miranda information obtained will "be fruit of the poisonous tree" and excluded from evidence.
If it is critically important to get actionable intelligence, it would be foolish to tell a suspect that he can remain silent and have an attorney present during any questioning. If the primary goal is to prevent enemy combatants (irregular militant forces that do not wear uniforms) form committing further acts of terrorism or sabotage, why are you reading Miranda rights to the suspect at all?
I am *just* a criminal defense attorney. Clearly, I do not have what it takes to be an Eric Holder, the U.S. Attorney General. However, I cannot understand our current policy. It appears to be partially focused on intelligence gathering and partially focused on criminal prosecution. Unfortunately, the choices appear to be mutually exclusive.
If these guys are enemy combatants engaging in asymmetrical warfare, they should be treated as such. The Geneva Conventions permit the interrogation and unlimited detention of such people. They are not granted the rights and privileges of either uniformed soldiers or civilians. Incidentally, Miranda also does not apply to soldiers tried under the Uniform Code of Military Justice.
If they are criminals committing crimes, they should be treated as such. American Federal Criminal Procedure is very clear and easily understood by everyone who has made it through the second year of law school. Interrogating prior to Mirandizing, will severely jeopardize a criminal case.
Our present policy appears to achieve the worst of both possible outcomes. We interrogate for a while without Mirandizing and potentially ruin a civilian criminal prosecution. Then, we Mirandize and stifle additional efforts at gaining actionable intelligence.
In all of the times that the Attorney General has been questioned by the media about this, he has never revealed how our current practice advances either goal. Rather, we hear him talk about getting intelligence then following the constitution. That literally means getting less than all information and ruining the subsequent criminal prosecution.
It is not up to me to decide which policy is more important. But it seems that we should pick one goal or the other and design our policy clearly around it.
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