07/05/2010 05:12 am ET Updated May 25, 2011

Conservative Vigilantes: Please Exercise Your Right to Silence

Once again conservatives are flying the Willie Horton flag and criticizing the Obama administration's interrogation protocols for terrorist suspects. This meme began with criticism about the handling of Farouk Abdulmutallab, the Christmas Day underpants bomber. This morning it was picked up again after the arrest of Faisal Shahzad on charges of attempting to detonate a SUV bomb near Times Square. Many right wing conservatives now contend neither suspect should have been read Miranda warnings.

The assertions they make have been wrong on the facts. Both suspects were initially questioned without having being read the warnings. The legality of that is discussed below. Both suspects answered questions without invoking rights cited in the warnings and the predictability of that is also discussed below.

It is striking though that the conservative law and order vigilantes have returned to this theme once again. The purpose of this article is to correct facts and legal misimpressions that their misguided and cynical critiques have raised concerning the application of Miranda when terrorist suspects are arrested.

The Alice in Wonderland Approach: Only American citizens have Miranda rights

Newt Gingrich, on The Daily Show, argued after the Christmas Day arrest of Abdulmuttalab that he was not an American citizen and did not need to be read Miranda rights. Now, Senator Joseph Lieberman has jumped into the fray linking citizenship with constitutional rights. Peter Baker reports in today's New York Times this comment from the junior senator from Connecticut - the state with the moniker "Constitution State" on the license plate of the SUV driven by Shahzad to Times Square:

Senator Joseph I. Lieberman, the independent from Connecticut, suggested legislation that would strip Americans of their citizenship -- and the constitutional rights that come with that -- if they become involved in terrorism....."It's time for us to look at whether we want to amend that law to apply it to American citizens [and consider]... "whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act."

The solution is premised on a misconception -- first raised about Nigerian citizen Abdulmutallab -- 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 rights if any post-arrest statement is to be used in a criminal prosecution.

Lieberman, a lawyer before he became a career politician clinging to a Senate seat, should be ashamed of his assertion that a law can be passed to strip people of constitutional rights after they are apprehended and charged. That is an astonishing Joe in Wonderland statement stripped right out of Lewis Carroll's jurisprudence for little children.

The problem with such statements is not just incoherence and low road political intentions. On the airwaves and in newspapers, such statements can have the pernicious consequence of spreading misunderstanding that constitutional rights to a lawyer, for example, 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 non-citizens and the police need to be clear that constitutional rights, such as Miranda warnings, apply for citizens and non-citizens alike.

Curiouser and Curiouser

Aspiring Tea Party candidate John McCain isn't on the same citizenship page as his old BFF, Lieberman. He does not favor revoking citizenship to avoid recognizing constitutional rights. (Some leeway on legal issues should be afforded McCain since he was in a Vietnamese prison when Joe Lieberman was supposed to be studying constitutional law at Yale Law School.) But, again according to Baker's article in the New York Times:

Senator John McCain of Arizona, Mr. Obama's Republican presidential opponent in 2008, said it would be "a serious mistake" to give Mr. Shahzad his constitutional rights until he had been fully interrogated. "Don't give this guy his Miranda rights until we find out what it's all about," Mr. McCain said on Don Imus's talk show.

The question that follows from such a jurisprudential gem is this: why bother telling anyone about a right to remain silent after you have already interrogated them to your satisfaction? Would "silence" at that point refer to the silence to be endured for 40 years of a prison sentence in a Federal SuperMax? Learning about, or being reminded of, a right to refrain from answering questions that incriminate you - after the prison or execution chamber door has closed - seems quite beside the point. Unless the point is to just inflict cruel irony.

But again, in a Lewis Carroll ("the sentence, the verdict afterwards") universe, it makes perfect sense.

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 is justified by an emergency, dangerous to the safety of others.

Quarrles facts resembled those drawn from a police procedural like Law and Order as opposed to the national security scenarios faced by Jack Bauer on 24. Quarrles concerned the need to find a gun that may have been tossed in amongst some fruit by a suspect being pursued during a police chase and arrest in a supermarket. Quarrles' acknowledgement 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 terrorism suspects about imminent plans of other conspirators qualifies as an emergency where the Quarrles' emergency questioning exception would apply. In fact, the 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 - applies with greater force to the arrests of Shahzad and Abdulmuttallab than it did to Quarrles. In Quarrles, the "danger in the fruit aisle" doctrine has always seemed like a stretch, an invention of the fertile mind of a Federalist society law clerk for Chief Justice Rehnquist. Ironically, the scope and complexity of the threat from terrorism has arrived a quarter century later to make Quarrles seem a bit more doctrinally defensible.

Baker's New York Times article
reports on the use of the almost routine reliance on the public safety exception:

"The suspect, Faisal Shahzad, was interrogated without being read his Miranda rights under a public safety exception and "provided valuable intelligence and evidence," said John Pistole, deputy director of the F.B.I.

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 criminal trial. Reading 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 the misguided belief that they best try to talk their way out of trouble on the spot before they are charged.

Not surprisingly, given the lack of education and criminal sophistication of the recently arrested Jihadist recruits, these suspects don't appear to be as problematic or recalcitrant for police investigators as Mafia Dons and Wall Street brokers with whom law enforcement has substantial experience. Unlike the Gottis and Madoffs, the Jihadist wannabes missed the "Lawyer up" memo. Just like most members of the street crime underclass, when arrested they frequently spill the beans on themselves and confederates within seconds after being read Miranda rights.

Finally, according to Baker's article, what was really the impact of the police having read Shahzad those nettlesome rights:

"Mr. Shahzad was later read his Miranda rights but "continued talking," Mr. Pistole said."

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 experienced and well trained in using psychological techniques and legal pressure (e.g. a possibly lighter sentence) to obtain statements while still adhering to the "reminder-about-your-rights" criminal justice function of the Miranda rules.

The concerns of Senators McCain and Lieberman about how Miranda may impede law enforcement are purposely imagined, not real. There simply is no reason (other than bloody shirt waiving politics) to assume that the same tools law enforcement professionals routinely use against gang hardened and sophisticated domestic criminal suspects cannot be deployed effectively by trained American law enforcement professionals in response to future jihadist suspects like Abdulmutallab and Shahzad.

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, I believe, conservatives 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.

There is one more twist to today's discussion politicizing criminal justice rights and rules for police investigations. Arrested suspects have recently attracted the support of an ardent defender of the Constitution: Glenn Beck.

I would have never guessed that an article like this would end with a quotation from Glenn Beck. I hope his fellow conservatives will take his statement to heart. On the subject of reading Shahzad according to Baker's article in the New York Times, Beck said:

"He's a citizen of the United States, so I say we uphold the laws and the Constitution on citizens," Mr. Beck said. "He has all the rights under the Constitution. We don't shred the Constitution when it's popular. We do the right thing."

Glenn, I couldn't have said it better. Can you bring the doughnuts to the next ACLU meeting?

Subscribe to the Politics email.
How will Trump’s administration impact you?