Orin Kerr at the Volokh Conspiracy posted an article yesterday with a discussion about the limits and legalities of questioning suspects outside of Miranda. According to Kerr, Miranda only comes into play if you want to admit the suspect’s statement in court. If you’re not planning to do that because you’ve got other evidence, it doesn’t matter. Also, there’s a public safety exception to the rule. You don’t have to read a suspect his rights before asking him, “are there any more bombs out there?”
I don’t know enough personally to back up this argument. I’m just mentioning it because I thought it was interesting.
As for the poll - I voted try him as a US citizen. It’s a national disgrace that we even tried to create this extra-legal category in the first place.
Just to clarify, as I said above, the public safety exception isn’t what allows you to ask that question in the first place. The exception just means that under certain circumstances, you can use the suspect’s response to that question in court.
But only those responses that are related to public safety. If they asked him whether he had been reading Jihadist websites in the recent past, I’m pretty sure that would not be admissible unless he had been Mirandized.
I don’t care if he has a terrorist membership card, he committed a crime in the US and should be tried in civilian courts. The victims deserve a conviction following a fair and public trial. The bullshit “enhanced interrogations” provided very little useful information, soiled our reputation as a country of laws, and screwed up our ability to put people on trial for their crimes. Senator McCain must really hate America.
As this trial progresses, which brother will be held responsible for which murders and which injuries? Will it be claimed that suspect #1 only murdered/injured the victims at the site of the first explosion and suspect #2 only murdered/injured the victims at the site of the 2nd explosion (or vice versa? idk)? Which monster actually shot the MIT officer?
co-conspirators can be held liable for everything done in the course of the conspiracy. Thus, Suspect 2 is on the hook for all damage done by both bombs, and most likely the MIT officer’s shooting, even if he didn’t pull the trigger.
Senator McCain, despite what the OP said, is not calling for him to be tried as an enemy combatant and recognizes that he must be tried in a civilian court. Please see my cites upthread.
Everything relies on the assumption the suspect does not already know his rights.
As you stated in the part I did not quote, Miranda informs a suspect of their rights. Upon hearing “silent” “lawyer” a suspect might not talk or ask for a lawyer. He might not, but the likelihood increases some amount. A lawyer would likely advise the suspect to remain silent.
If a person is declared an enemy combatant, they can be questioned without being informed of their right to remain silent and without access to a lawyer for information gathering purposes. That’s the difference. I don’t think the information would be admissible in court; especially if it falls outside the public safety exception. I could be wrong, but it would be more intelligence gathering versus evidence gathering.
It’s all about the risk of not getting critical future life-saving information. It’s done by removing a person’s rights. They could Mirandize him, he could waive it or not understand it, and talk. It’s just the “risk” that it would spark him to remain silent and/or get a lawyer.
Under either scenario, he does not have to talk if he does not want to. He just wouldn’t be informed of that.
Now, you can’t just willy nilly label someone an enemy combatant. Information/intelligence has to suggest you belong to an enemy we are at war with (or the acts the person/group did initiated a war - Boston bombing did not). So here, he has to fall under the AUMF re: War on Terror - be in al qaeda, Taliban, or al qaeda affiliate. Nothing I’ve read suggests this. Senator Graham, caught in a catch 22, acknowledges this and can only offer that yes, he does fall under the AUMF because he has ties to Chechnya and there are known al qaeda operatives in Chechnya. He wants to question him to find out more about his ties/any future bombings. A lawyer would hinder that process of intelligence gathering. Obviously, that’s not good enough to put that label on him. I imagine Graham knows this, and practically speaking, until a habeas hearing is held and a ruling of “nothing suggests he’s an enemy combatant, release him from military detention” - they’d have asked him enough questions. Depends on how quick that habeas hearing is.
Here’s McCain’s statement. If you want to try someone in civilian court, it is best not to violate the Rules of Criminal Procedure in the first 30 days. You’re asking for trouble.
I quite agree. I think it is fundamentally at odds with the common understanding of what a civilian criminal trial is. John Mace apparently does not agree. But, if we’re going to debate this, wouldn’t it be better in the thread in Great Debates, rather than a poll thread in IMHO?
I said of course not, he’s a US citizen on US soil. John McCain has proven time and time again that the only interest he has in life is shitting in Obama’s face at every opportunity. Anything he says that involves Obama in any way should be disregarded.
Not really. They have enough evidence against him that they probably won’t need to use anything he tells the FBI before he is Mirandized. Remember, you don’t have a fundamental right to be read the Miranda quote, and people are tried and convicted all the time without that happening.
n.b.: I’m not saying I agree with McCain, but I think many people are over-inflating this whole Miranda thing. I blame too much viewing of Law and Order.
I wasn’t even thinking about Miranda rights. Like you, I don’t think it’s a big deal. There are all kinds of other requirements in the Rules that presumably wouldn’t kick in if the case was handled outside the civilian system for any significant period. The right to an initial appearance, the right to counsel, the right to a bail hearing (ha!), the right to discovery, etc. The government shouldn’t just hold a person in custody and ignore the Rules because it really really would like to. As I said, it will complicate things later.
In addition, people in the civilian system talk all the time, even after being advised of their rights, and even after getting a lawyer. Imagine what a bargaining chip the death penalty could be in such a discussion.
Well, I think there is more than a little grandstanding going on here by McCain and Graham, so I’m not sure they’re even all that much invested in what they claim to be wanting. At least Graham, though, seems to defer to “federal judges” in his own statement. The joint message they sent out was a lot loser and vaguer about the whole process.
Additionally, it seems to me that if the president can designate a US citizen to be assassinated without judicial review, he can designate a US citizen to be held as an EC. I don’t think he should be able to do either, but those arguing in favor of the former puzzle me if they are against the latter.
Again, not being Mirandized doesn’t remove your right to remain silent. You still have that right. The risk to not Mirandizing the suspect is that if you interrogate him, and he talks about his terrorist terrorism activities, you won’t be able to use his statements in court.
But the case against this particular suspect isn’t going to depend on his confession. They can chat with him about his terrorist terrorism, and he can say whatever, but they aren’t going to need to bring that up in court. And the “public safety” exception to Miranda isn’t that they can interrogate you if there’s a public safety issue. It’s that your statements can be used in court even though you weren’t Mirandized.
The cops can interrogate you whenever they like, with or without a lawyer, with or without Mirandizing you. The only thing that will happen is that sometimes they won’t be able to use your responses against you in court. If they don’t care about that, then there’s no need to Mirandize you.
I misread the post I was responding to. His question is more in line with what I have quoted from you.
My answer is roughly the same. I’m not talking about getting admissible evidence, I understand all that. I’m only talking about increasing the likelihood that words will come out of a suspect’s mouth in response to a question. i.e., they’ll talk. So the difference as I understand the post now is, as an Enemy Combatant, you lose access to your right to a lawyer, as a civilian, you always have that right whether you’re informed of it or not. Access to a lawyer dramatically decreases the chance you will talk. You still don’t have to physically talk in response to questions, of course..