You Have the Right to Silence and New Underwear: Conservatives Play Their Miranda Canard

Eager to score Willie Horton points, conservative Republicans have criticized the Obama administration's interrogation of Farouk Abdulmutallab, the underpants bomber. They contend he should not have been read Miranda warnings. The assertions they make have been wrong on the facts. More importantly, they have been remarkably wrong on the law, too. The purpose of this article is to correct facts and legal misimpressions that have arisen concerning the application of Miranda when terrorist suspects are arrested.

The Law and the Facts

Argument #1: Abdulmutallab was not an American citizen, so it was unnecessary to give him Miranda rights.

This assertion was made by Newt Gingrich on The Daily Show. Gingrich argued to Jon Stewart that Abdulmuttalab was not an American citizen and did not need to be read Miranda rights. Stewart's retort (that accepted Gingrich's citizenship error) was that Richard Reid, the airline shoe bomber, was arrested during the Bush administration and he was read Miranda rights. Gingrich responded that the Bush administration's handling of that otherwise remarkably similar case had to do with Reid being an American citizen while Abdulmuttalab was not.

Gingrich was, of course, wrong on the facts: Reid was a British citizen. However, lost in the kerfuffle is the fact that Gingrich was also wrong on the law. And Stewart, too, possibly contributed to the confusion (even if he had instantly realized Gingrich's error) by not challenging Gingrich on the legal implications of citizenship.

The argument is premised on a misconception that only American citizens must be read Miranda rights and non-citizens need not be read the rights. Such an assertion is dead wrong legally. Miranda applies to any person taken into custody in this country regardless of citizenship. Anyone detained or arrested, and then questioned, must be read Miranda warnings if any statement obtained is to be used in a criminal prosecution thereafter.

There is a pernicious and highly regrettable consequence of spreading so broadly a misunderstanding that the right to a lawyer and silence may depend on citizenship status. Non-citizens could wrongly conclude that the rights don't apply to them. In any arrest or detention in the United States, both the non-citizens and the police need to be clear that Miranda does apply and the rights the warnings reference are held by citizens and non-citizens alike.

Argument #2: Abdulmutallab was an enemy combatant entering the U.S. so -- citizenship aside -- he should not have been read Miranda rights.

Again, wrong on the facts and therefore wrong on the law. Abdulmutallab was arrested on American soil in the city of Detroit so the extra-territorial application of Miranda to persons in foreign countries could not arise as an issue. The last three decades have been rough for Detroit. But despite Detroit's economic troubles, it is still located in this country.

What's more, American citizens who are arrested by American law enforcement authorities (or their agents) in a foreign country frequently are Mirandized. Bush administration law enforcement officials believed it to be both legally and strategically wise to do so. For example, John Lindh (the so-called American Taliban) was the first and paradigmatic case of an arrested enemy combatant. Lindh was questioned by an FBI agent while in custody near an Afghan battlefield. The agent first read Lindh his Miranda rights.

On December 9th, an F.B.I. agent assigned to Pakistan, Christopher Reimann, began extracting the confession from Lindh that became the basis for the criminal case. The encounter took place at Camp Rhino, a Marine base near Kandahar. Lindh, still blindfolded and handcuffed, was taken from his steel container to a nearby tent. Lindh's blindfold was removed. Reimann flashed his F.B.I. badge, and began to question Lindh. Reimann read Lindh the Miranda warning. But, when noting the right to counsel, the agent now acknowledges, he ad-libbed, "Of course, there are no lawyers here.

I told him that if he wanted a lawyer the interview would end right there," Reimann said in a phone conversation. "He's an adult, he had the opportunity to make that decision... Under these circumstances, Lindh, still in handcuffs, signed a waiver of his right to counsel.

Jane Mayer, "Lost in the Jihad," The New Yorker, March 10, 2003

Strategically, the fact that Lindh was read his Miranda rights redounded to benefit the Bush administration's prosecution of Lindh. Attorney General Ashcroft and the Justice Department relied heavily on the fact that the FBI agent had given Lindh Miranda warnings, showing concern for Lindh's constitutional rights and insuring the statements were viewed as obtained lawfully. Despite being abused for days beforehand (a long period of blindfolded isolation in a shipping container with a bullet in his leg), the fact that Lindh was told he could remain silent and had a right to an attorney was cited by the DOJ to show he had been accorded all the due process the law required. Without the Miranda incantations to cleanse and dress up the circumstances of his interrogation, Lindh's statements to the FBI agent may have been ruled inadmissible and, in turn, the Government may have faced a harder path to obtaining a criminal conviction.

Argument #3: Reading Abdulmutallab his Miranda rights restricted law enforcement and intelligence agencies' access to him in a critical period after his arrest.

This argument ignores hornbook Miranda rules and reveals stunning naiveté about how day-to-day law enforcement agencies work.

First, every professional in law enforcement is aware of the existence of a "public safety exception" to Miranda which permits questioning without warnings or waivers in emergency situations. A quarter century ago, in New York v. Quarrles, the Supreme Court clarified Miranda's application during situations when immediate questioning without giving Miranda rights (and then obtaining a waiver) is justified by an emergency, dangerous to the safety of others.

Quarrles concerned the need to find a gun that may have been tossed in amongst some fruit by a pursued suspect during a police chase and arrest in a supermarket. Quarrles' acknowledgment of the location of the gun was admissible at his trial, despite his not having been read Miranda rights, because of the emergency need to find the gun in the bananas before a customer might encounter it. In such situations, the Quarrles Court held law enforcement agents need not stop to weigh whether, by questioning before getting a waiver of Miranda rights, police risk statements being inadmissible in a criminal prosecution.

If the Supreme Court deemed a gun-in-the-bananas situation an emergency obviating the need for Miranda warnings, surely questioning Abdulmutallab about whether other plots against airliners were afoot would qualify as an emergency and the Quarrles emergency questioning exception would apply. Moreover, the doctrinal rationale of Quarrles -- that there are sometimes societal and national interests larger than those of either the suspect's rights or the government's interest in prosecution -- underscores a larger reason why Conservative misinformation about Miranda's application in terror investigations is so misguided.

Reading an arrested suspect Miranda warnings is a decision that can be made in spite of a police investigator's uncertainty about whether she has arrested a criminal suspected of terrorist acts or a member of an active conspiracy from whom actionable intelligence can be obtained. [As a practical matter known widely by police officers, lawyers and judges, the vast majority of suspects don't invoke the right to silence in a misguided belief that they best try to talk their way out of trouble on the spot and before they are charged.] And in any event, the consequence of a suspect requesting an attorney is simply that post-invocation statements cannot be used in the prosecution's case-in-chief in a subsequent criminal trial.

But, with 200 + witnesses on Abdulmutallab's plane and his burned underpants for a jury to consider, little evidence for criminal trial purposes was needed. [It will not matter in the end whether they were boxers or briefs.] Nothing in the Constitution restrained either law enforcement officials or intelligence agents from continuing to question Abdulmutallab regardless of whether he chose to exercise his right to an attorney. The reason to give the warnings in the first instance (after the passage of any time of emergency) was to preserve criminal trial admissibility for any statements Abdulmuttalab might make. But that reason is just an ancillary benefit when compared to the greater importance of preventing future terrorism. Terrorism prevention can still be pursued by intelligence or law enforcement agents even if the suspect invoked Miranda and asked for a lawyer.

For many decades law enforcement agents have questioned arrested persons who were members of vicious street gangs, the Mafia and thousands of other domestic and foreign criminal syndicates. Government investigators are professionally experienced and well trained in using psychological techniques and legal pressure (e.g. a possibly lighter sentence) to obtain statements while adhering to the "reminder-about-your-rights" criminal justice function of the Miranda rules. Hardened criminals more resolute and dangerous than young Abdulmutallab "flip" or "snitch" all the time and provide information for further investigation of their confederates' plans or for use in future prosecutions.

Ironically, there are many reports that Abdulmutallab has "flipped" and is providing extensive information to government interrogators. There simply is no reason to assume that the same tools law enforcement professionals routinely use against other criminal conspirators cannot be deployed effectively by trained American law enforcement professionals in response to future jihadist wannabes such as Abdulmutallab.

There's Law and Then There's Politics

It is regrettable that conservatives have sought to politicize law enforcement tactics. They appear to have concluded that publicly supporting the competence of law enforcement officers who carry out arrests and interrogations risks giving up convenient political arguments -- even if those arguments unfairly demean police and intelligence agencies and even if the arguments misrepresent the law.

Stinging criticism of law enforcement agencies by conservatives is unusual. "Law and order" professionals are accustomed to being more bedfellow than punching bag for conservatives. But, conservative Republicans on the right can't resist a two-for-one target: newly despised terrorists and long despised Warren Court rulings about constitutional rights. They see synergy and political opportunity by joining the two and focusing the public's ire at both.

While conservatives are entitled to craft their own political talking points about how to treat arrested jihadist suspects, to paraphrase the late Senator Daniel Moynihan's riposte against an opponent, in doing so they are not entitled to make up their own facts or their own Miranda rules.