A “trial” is not a habeas proceeding.
And where, exactly, in the bill does it say they are not permitted access to counsel?
If the Congress needs to pass a law about this now, does that mean that it’s been done illegally for these past nine years?
No.
I would say more ad hoc.
This act does nothing to help in that regard. In particular, one problem lawyers have is there isn’t one clear definition of who the Gov’t can detain. Judges are all over the place. This act utterly fails to rectify that by including in criteria the phrase “Such other matters as the President considers appropriate.” That could be anyone. That’s back to square one again.
Another is how to determine the “end of hostilities.” This act offers no guidance. This issue has to be dealt with at some point.
Or just be killed as the naked political posturing it is.
Right there:
That’s just says he doesn’t have to be read his “Miranda rights”. It doesn’t say he can’t have access to an attorney. In fact, if anything, it certainly implies that he does.
That language says he doesn’t get read his “Miranda” rights, or told he has any.
Yeah, he just has to know it instinctively rather than being told.
“… or otherwise be informed of any rights that the individual may **or may not **have to counsel”
It’s right there, people.
“…or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.”
Don’t even try to tell me that if, in the middle of an interrogation, the suspect asks for her/his lawyer, they are just going to stop and give him access to one.
The accusation was “They won’t have access to counsel because it says they won’t right there in the bill.”. That is not supported by the language of the bill. If you want to move the goal posts to not having immediate access to an attorney, then you’re probably right.
And yet the Republic survived for nearly two hundred years before Miranda became law.
And during that time, people had access to counsel.
So we know, for a fact, that merely because people are not told what their rights are, they were still permitted access to counsel.
So why is this situation different?
Long time since I have read Miranda, but haven’t courts decided that in order for the right to counsel to be meaningful, the prophylaxis of the warning is required? Hence while the right still exists in the absence of the warning, to the extent it can be invoked, it is not considered a meaningful right?
Prophylaxis? I thought we didn’t torture anymore… 
You want an attorney? Well, here’s your prophylaxis!! :eek:
As a general principle, you’re correct. But that ruling extends only to the use of the statements made under interrogation against the accused in a subsequent trial. A moment’s thought will make this clear: what is the remedy for failure to wanr a suspect of his Miranda rights? Answer: suppression of the statements made by the suspect.
Since this legislation explicitly provides that criminal trials will not occur, the ill that Miranda guards against is simply not present: there is zero chance that his statements will be used against him.
Well, I was more concerned about pointing out the possible error in your comparison with pre-Miranda days, to be honest.
Here is one I honestly don’t remember the answer to - can an un-Mirandized statement be used as evidence in another person’s trial? I have a vague recollection it can.
Yes - one defendant may not vicariously exercise another’s Fifth Amendment rights. There are still the usual hearsay issues to consider, but there’s no Miranda violation.
Regarding potential habeas challenges:
I withdraw the access to counsel thing, since as you note it doesn’t explicitly provide for loss of same.
OK, so the only thing we’re thrashing out now is how someone might challenge the legality of his detention, yes?
While that’s a fair point to raise, it’s one that existed prior to this latest bill, the bill whose introduction spawned the OP. So it doesn’t seem accurate to lay at this bill’s feet the complaint that habeas petitions must be preceded by a CSRT.