Do Enemy Combants Have To Be Mirandized?

[Annie]

A link or two...

http://article.nationalreview.com/?q=NGI4MTZjZWE2ODdiNDkzMzA5NjkwZDA3OWU0NGQ1NTU=

You Have the Right to Remain Silent…
McCain, Miranda, and Common Article 3.

By Andrew C. McCarthy

A number of friends and colleagues (both conservative and liberal) have either quarreled with or expressed alarm about my contention that the 2005 McCain Amendment conferred Miranda rights on alien enemy combatants. This contention has been the subject of a 2005 article (here) and a Corner Post (on Tuesday). They say I am making the McCain Amendment out to be much more consequential than it was — which is funny because, at the time, they all seemed to think it was pretty consequential. Why else did we need to pass it?

For my part, the argument is welcome, and I’d be delighted to be wrong — although you may not want to bet the ranch that I am (as Congress and the president have already done).

To oversimplify for explanation’s sake, the McCain amendment extends the Fifth Amendment privilege to alien enemy combatants held overseas. It did this for the express purpose of clarifying the meaning of the terms “cruel, inhuman, and degrading treatment” (CID) in the United Nations Convention Against Torture. (That itself is ironic because Senator McCain, former Secretary of State Colin Powell, and others who supported the McCain Amendment are now faulting the Bush administration for trying to clarify impossibly vague terms in the Geneva Conventions’ Common Article 3.)

Now, the Fifth Amendment encompasses many things that plainly have nothing to do with CID. For example, it specifies a right to a grand-jury indictment, to double-jeopardy protection, and to just compensation for any government taking of property. It also has one protection that undoubtedly does relate to CID, namely, the right not to be deprived of life, liberty, or property without due process of law. (Due process has been held by the Supreme Court, in Rochin v. California (1952), for example, to prohibit government conduct in the collection of evidence that would “shock the conscience” of the court — a highly subjective test.)

Finally, the Fifth has a protection that may or may not relate to CID, namely, the Self-Incrimination Clause. That is the right of a defendant not “to be compelled in any criminal case to be a witness against himself.” It is this provision that causes me to say the McCain Amendment requires Miranda warnings.

According to my disputants, the McCain Amendment literally grants Fifth Amendment protection only insofar as government conduct could be considered “cruel, unusual and inhumane.” (As the McCain Amendment states: “the term ‘cruel, inhuman, or degrading treatment or punishment’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth … Amendment” (emphasis added).)

On this view, because the failure to give Miranda warnings to detained combatants is not “cruel, unusual or inhumane,” Miranda must not be covered by the McCain Amendment’s extension of Fifth Amendment rights.

I would like to believe this is true — and it is certainly an argument I would make if I were trying to make the contra case. Alas, however, I am neither an advocate for a client nor in the position of being able to dictate what the law is. Rather, I am trying to figure out and advise people what the Supreme Court would likely find the law is.

Here, it is worth remembering (how could we forget?) that the whole purpose of the McCain amendment was to regulate coercive interrogation. The amendment was the direct product of an overwrought debate over something that was already illegal — namely, torture. Its purpose was to crack down on sub-torture conduct (i.e., cruel, inhuman, or degrading treatment) as if it were torture so that, henceforth, the United States could not even be credibly accused of torture.

Plainly, leaving aside the afore-described due-process clause (which could be considered a catch-all), there is only one provision of the Fifth Amendment that, both on its own terms and according to the Supreme Court, directs itself to coercive interrogation. That is the self-incrimination clause.

My critics contend that Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer (and perhaps others) would hold that the McCain Amendment — the animating purpose of which was to prohibit coercive interrogation, and the text of which extends Fifth Amendment protections — somehow does not implicate the Fifth Amendment’s specific textual protection against coercive interrogation. Senator McCain, President Bush, and an overwhelming majority of Congress may be willing to roll that dice, but why should I be? Why should the rest of us be?

This Supreme Court has already gone out of its way to find that Common Article 3 of the Geneva Conventions, which literally relates only to civil wars, somehow governs our patently international conflict with al Qaeda. To come to this conclusion, it had to ignore clear provisions that say Geneva rights, including Common Article 3, are supposed to be enforced diplomatically — i.e., not by courts. Moreover, the same Court has found that questioning which merely fails to alert a suspect that he has a right to counsel is constructively coercive and violates the Fifth Amendment.

Knowing all that, you want me to assume this same Court would find that a constitutional provision directed at coercive interrogation really has nothing to do with coercive interrogation? That it is not “cruel” or “inhumane” to coerce a confession? You can dream on if you’d like, but I’m not drinkin’ the Kool-Aid.

If I am right that the courts, including the Supreme Court, would find the McCain Amendment provides alien enemy combatants held overseas with the Fifth Amendment right against compulsory self-incrimination, then it is unavoidable that Miranda warnings must be given.

The Supreme Court has long held that the failure to provide Miranda warnings (i.e., to tell the suspect, among other things, that he has a right not to answer any questions and to have a lawyer, paid for by the public, present for any questioning) is constructively coercive. In modern times, however, the Court has gone way beyond that.

In its 2000 Dickerson case, the Court held that its 1966 Miranda decision had so evolved that it was now part-and-parcel of the Fifth Amendment privilege. For 30-plus years before then, the Court had said that its judge-made Miranda rules were merely “prophylactic” — a protection around the Fifth Amendment guarantee against compulsory self-incrimination, but not really part of the Fifth Amendment.

Dickerson changed all that. With Dickerson, the Miranda warnings became part of the core Fifth Amendment guarantee. After Dickerson, the failure to give Miranda warnings is not just a “Miranda violation”; it is a violation of the Fifth Amendment right not to be subjected to coercive interrogation.

Thus, according to the Supreme Court, the failure to “Mirandize” a suspect is inherently coercive. That leads me to believe a majority of the current Supreme Court — and many, if not most, federal judges — would rule that coercive interrogation violates the McCain Amendment, the principal purpose of which was to bar coercive questioning.

To be clear: I’d love to be wrong. For what little it’s worth, I thought Dickerson was wrongly decided. I think the privilege against self-incrimination means a right not to have one’s will overborne. I don’t think the failure to give a suspect Miranda warnings perforce means his will was overborne. Thus, I don’t believe a Miranda violation (i.e., the failure to give all the Miranda warnings) necessarily violates the self-incrimination clause. Nor do I even think all real violations of the self-incrimination clause are necessarily “cruel, unusual [or] inhumane.”

But what I think is irrelevant. What matters is what the Supreme Court thinks. And the Supreme Court is very likely to find that any coercive interrogation is “cruel” “unusual” or “inhumane” — the McCain Amendment terms. Having already found that the failure to provide Miranda warnings is coercive, the Court would almost certainly find that a Miranda violation transgressed the McCain Amendment.

Could I be wrong? Of course. But I could also be right, and if I am it would be impossible to use information from confessions by al Qaeda leaders in the trials against them. Even those of us who argued against the McCain Amendment do not think the senator and his followers intended such a result. What they wanted was a belt added to the suspenders that already forbade torture. The lack of Miranda warnings is plainly not torture.

There’s one easy solution. Senator McCain (or some other member of Congress) could propose a law that clarified the McCain Amendment — explaining that Congress did not intend the McCain amendment to include Miranda protections. That would still leave us arguing over what the McCain Amendment means, but it would be a lot better than worrying about whether, from the moment of capture, we owe every jihadist a publicly funded lawyer who will surely tell him not to answer any questions — or provide us with any intelligence.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.

 

[Annie]

Same old culprits:

http://timchapmanblog.com/2006/09/19/the-gang-of-14-strikes-again/

The “Gang of 14″ strikes again

Never content not to be the center of attention, the much-vaunted “Gang of 14″ appears to be making a comeback. But this time, rather than scuttling a Senate rules change, they are threatening to weaken the Administration’s ability to prosecute the war on terror.

While it has been widely reported that Republican Senators John McCain, Lindsey Graham and John Warner are opposing the Administration’s proposal for military commissions, it has been underreported who their senatorial cohorts are. Today, Roll Call runs down the list:

By most counts, Warner, McCain and Graham have at least eight other GOP supporters — Sens. Susan Collins (Maine), Olympia Snowe (Maine), Dick Lugar (Ind.), Mike DeWine (Ohio), Gordon Smith (Ore.), John Sununu (N.H.), Lincoln Chafee (R.I.) and Chuck Hagel (Neb.) — for their bill, which would give terrorist suspects more rights during trials and omits language the Bush administration says is necessary to protect U.S. interrogators from being charged with ambiguous war crimes.​

Cross reference this list with the Republican members of the “Gang of 14″ and you get a full match plus the addition of Sununu, Hagel and Lugar.

The media lauded the “Gang” as heroes when they stopped the Senate from changing its rules with regards to judicial nominations. To the liberal media, this group of moderates, or “the mod squad”, was a picture of thoughtful moderation. That great press no doubt elicit’s a desire for more…and with the stance they have taken on the military commissions issue they are sure to receive it from a media who has already shown its determination to criticize Administration attempts to keep the country safe from terrorists.

The difference between the first strike of the “Gang” and this one is like night and day. By most accounts, the judicial nominations process has run smoothly despite — some could make the case — because of — the “Gang’s” interference.

Sadly, if the “Gang” succeeds in defeating Congress’s attempts to sanction the Administration’s military commissions proposal not only will the outcome not be as laudable, but the Administration’s ongoing attempts to wage the war on terror will have been dealt a severe blow.

This entry was posted on Tuesday, September 19th, 2006 at 3:22 pm and is filed under national security.

 

[Mr. P]

Didn't read it, but it pushed me to say, more and more I see the, "It's a Law enforcement Issue" group banging their drum, again.

 

[William Joyce]

"Miranda" should not apply to either domestic, citizen criminals or alien, enemy combatants. The Constitution does not have a prohibition on "unwarned" statements to begin with. But when "racist" white police officers lay their grubby mitts on the saintly murderer and blessed Hispanic Ernesto Miranda, the Supreme Courts' white liberals get a case of the white guilts and make up a cockamamie rule. Now, the cockamamie rule applies 'round the globe, making law-abiding peaceful folks unsafe, criminals and murderers safe, and white liberals who are rich enough to avoid the whole thing self-satisfied.

But there I go again. Geez, what a hate-filled, bitter creature I am.

 

[Annie]

"Miranda" should not apply to either domestic, citizen criminals or alien, enemy combatants. The Constitution does not have a prohibition on "unwarned" statements to begin with. But when "racist" white police officers lay their grubby mitts on the saintly murderer and blessed Hispanic Ernesto Miranda, the Supreme Courts' white liberals get a case of the white guilts and make up a cockamamie rule. Now, the cockamamie rule applies 'round the globe, making law-abiding peaceful folks unsafe, criminals and murderers safe, and white liberals who are rich enough to avoid the whole thing self-satisfied.

But there I go again. Geez, what a hate-filled, bitter creature I am.

Most of the time I do not find you 'hate-filled', you are consistent and have some rationale for why you write what you do. Yes, I mostly disagree with you, but rarely find what you post 'hate-filled.'

 

[Hobbit]

What I'm worried about is that if these clowns start pushing these monsters through our courts and then letting them free, soldiers will start pulling Ned and Jimbo via South Park. Whenever they capture a terrorist, they'll get everything they can out of him, then yell, "They're coming right for us," and shoot.

 

[archangel]

A link or two...

http://article.nationalreview.com/?q=NGI4MTZjZWE2ODdiNDkzMzA5NjkwZDA3OWU0NGQ1NTU=

Interesting comment...do those taken as prisoners need to be Mirandized? I would say no as the Miranda warning only applies to those arrested in the USA...as per case law...so if one is taken into custody in a foreign country I would say by the definition of law that Miranda warnings do not apply!...However GW asking for clarity is a good thing...I cannot see why McCain and Powell are confused with this!

 

[Gunny]

I think granting US Constitutional rights to thugs and murderers bent on destroying the versame US Constitution and everything it represents is justa bout as stupid as it can get.

 

[Nuc]

I think that enemies in the traditional sense of the word, i.e. uniformed soldiers in the service of a country who is officially at war with us deserve all the rights and guarantees of international law.

These stateless international terrorists are not really "enemies" and have forfeit their rights by serving masters other than their own nations. If they can't play the game by the rules, why should the rules apply?

 

[Annie]

I think that enemies in the traditional sense of the word, i.e. uniformed soldiers in the service of a country who is officially at war with us deserve all the rights and guarantees of international law.

These stateless international terrorists are not really "enemies" and have forfeit their rights by serving masters other than their own nations. If they can't play the game by the rules, why should the rules apply?

Agree. I'll even say we should not torture, which they do. However, the whole arguement that they not be humiliated and such, well screw that.

 

[Gunny]

I think that enemies in the traditional sense of the word, i.e. uniformed soldiers in the service of a country who is officially at war with us deserve all the rights and guarantees of international law.

These stateless international terrorists are not really "enemies" and have forfeit their rights by serving masters other than their own nations. If they can't play the game by the rules, why should the rules apply?

Good point.

 

[nt250]

"Miranda" should not apply to either domestic, citizen criminals or alien, enemy combatants. The Constitution does not have a prohibition on "unwarned" statements to begin with. But when "racist" white police officers lay their grubby mitts on the saintly murderer and blessed Hispanic Ernesto Miranda, the Supreme Courts' white liberals get a case of the white guilts and make up a cockamamie rule. Now, the cockamamie rule applies 'round the globe, making law-abiding peaceful folks unsafe, criminals and murderers safe, and white liberals who are rich enough to avoid the whole thing self-satisfied.

But there I go again. Geez, what a hate-filled, bitter creature I am.

That's not what Miranda does. It actually does just the opposite. A Miranda warning allows a self incriminating statement made to the police to be used against the accused in court.

The key words in the Constitution are "not to be compelled". Defendents have a right to not testify at their own trials, and the refusal to testify cannot be used against them by the jury. A person is presumed to be "innocent" and it's up to the state to prove they are guilty beyond a reasonable doubt. What Miranda does is that it allows the state (police officers) to use a defendants own words against him at trial, even if he doesn't testify.

Miranda is actually a way to get around the Fifth.

 

[archangel]

That's not what Miranda does. It actually does just the opposite. A Miranda warning allows a self incriminating statement made to the police to be used against the accused in court.

The key words in the Constitution are "not to be compelled". Defendents have a right to not testify at their own trials, and the refusal to testify cannot be used against them by the jury. A person is presumed to be "innocent" and it's up to the state to prove they are guilty beyond a reasonable doubt. What Miranda does is that it allows the state (police officers) to use a defendants own words against him at trial, even if he doesn't testify.

Miranda is actually a way to get around the Fifth.

and my advice to you...having logged over 1200 hrs of court time and never lost a case..."You have the right to remain silent-please exercise your rights!"


Little Miss Muffet!:moon4:

 

[Mr. P]

That's not what Miranda does. It actually does just the opposite. A Miranda warning allows a self incriminating statement made to the police to be used against the accused in court.

The key words in the Constitution are "not to be compelled". Defendents have a right to not testify at their own trials, and the refusal to testify cannot be used against them by the jury. A person is presumed to be "innocent" and it's up to the state to prove they are guilty beyond a reasonable doubt. What Miranda does is that it allows the state (police officers) to use a defendants own words against him at trial, even if he doesn't testify.

Miranda is actually a way to get around the Fifth.

If true, then why do they hall innocent people off to jail?

I agree with you on Miranda allowing the state (police officers) to use a defendants own words against him at trial, even if he doesn't testify.

 

[CSM]

What I'm worried about is that if these clowns start pushing these monsters through our courts and then letting them free, soldiers will start pulling Ned and Jimbo via South Park. Whenever they capture a terrorist, they'll get everything they can out of him, then yell, "They're coming right for us," and shoot.

Sounds reasonable to me. Taking no prisoners solves a lot of problems; we don't have to feed, house and clothe anyone and there isn't anyone to "torture". No worries about military courts vs. civilian courts and no crap about humane treatment of prisoners. It also just might make the terrorists think twice: all the rhetoric is one thing but when it comes right down to it choosing to die by your own hand is one tough decision. If you notice, we dont hear a lot about suicide bombers anymore...its all IEDs.