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

There You Go Again: the Death Rites of Miranda

The Republican Party once was the proud defender of the rule of law, regularly disparaging wimpy Democrats who lacked the backbone to protect society from the criminal element. Remember, Republican hero Ronald Reagan ran for president on the platform of law and order, labeling his opponents "weak on crime" when concerned about the niceties of civil rights. The Gipper's emphasis on law and order was an early ploy dating back to 1966 when Reagan bested Edmund Brown in the gubernatorial election by linking Brown to unrest in California cities as a consequence of being weak on crime. George Bush the Elder accused Michael Dukakis of being "soft on crime." Bob Dole borrowed the same terminology in his contest with Bill Clinton. While Clinton was president, Senator Orrin Hatch (R-UT) said that Clinton wanted "to turn prosecutors into social workers." George Bush the Younger proudly noted that Texas executes more prisoners than any other state; and that he himself presided over more than 130 executions while governor. The theme over the past 40 years has been clear and consistent: GOP candidates are manly men who fight for law and order. Only leftist weaklings bother with details like fair trials or worry about executing innocent prisoners.

History has demonstrated, however, that such fidelity to law and order was nothing but political theater rather than a deeply-held principle. The GOP, it turns out, will abandon any pretense to care about the law at the first hint of inconvenience. We have many examples. Oliver North was lionized for lying to Congress while Clinton was impeached. After U.S. immigration officials ruled that Elian Gonzales should return to Cuba over the objections of his Miami relatives, Republicans blasted Clinton for enforcing the law. Nowhere, though, is the GOP's cynical hypocrisy on crime, and law and order, more evident than in Republican statements on Miranda rights.

We see this with the recent arrest of Faisal Shahzad for the attempted terrorist attack in Manhattan. The GOP is aghast at the notion that law enforcement officials read Shahzad his Mirada rights upon his arrest. We can conclude from this that Republicans wish only to enforce those laws of which they approve while gleefully ignoring those they do not. Breaking the law is perfectly acceptable when advancing a conservative agenda.

With no apparent embarrassment, Republicans have taken the strange position that law and order can only be preserved if we undermine our own laws. Forget not that Shahzad is an American citizen, just like you and me, enjoying all the rights and civil liberties encoded in our Constitution. Nevertheless, Sen. John McCain (R-NV) said that "giving Shahzad his Miranda rights would be a serious mistake." Sen. John Cornyn (R-TX) said of the suspect's arrest and subsequent cooperation, "That is a stroke of good luck. What if he had not waived them and just quit talking, said 'I want my lawyer'?" Sen. Jon Kyl (R-AZ) continued the theme with, "Maybe we got lucky and [Shahzad] said I will go ahead and talk to you anyway. But you didn't know that when you read [him] the rights. So I stand by what I said -- it is better in these kinds of cases to get the intelligence first and then, if you decide you want to proceed with an Article 3 prosecution, then read the Miranda rights."

The GOP war on Miranda began in earnest only after Obama's election, precipitated by the arrest of the Christmas underwear bomber Umar Farouk Abdulmutallab. The far right and the Tea Party movement in particular expressed outrage in the form of ugly epithets hurled toward Attorney General Eric Holder for his decision to try Umar in federal court; for doing his duty as specifically defined by the Constitution that he is sworn to uphold. Prior to Umar's arrest Republicans voiced no such objections to Miranda or trying terrorist suspects in civilian court. Under George Bush, for example, the notorious shoe bomber Richard Reid was read his Miranda rights without a peep from the GOP.

John Walker Lindh, an American citizen captured in Afghanistan, was detained as an enemy combatant, but later transferred to the civilian courts in early 2002. Following Lindh's conviction, U.S. District Judge T.S. Ellis sentenced him to 20 years in federal prison.

Jose Padilla, an American citizen like Shahzad, was charged with taking part in an Al Qaeda plot to detonate a radioactive "dirty bomb" within our borders. Padilla was incarcerated for more than three years in solitary isolation in a military jail as an enemy combatant. But that turned out to be a mistake. In November 2005, to avoid the consequences of a court challenge to Padilla's status, the Bush administration suddenly announced that criminal charges had been filed against him in federal court. Padilla's civilian indictment made no mention of the dirty bomb or most of the other original charges. In support of moving Padilla from the military to civilian judicial system, here is what Newt Gingrich had to say: "Well, I think if they believe they have enough evidence to convict him, going through the process of convicting him and holding him, I suspect, maybe for the rest of his life without parole would not be -- would hardly be seen as a loss." Irony, anybody?

Ali Saleh Kahlah al-Marri, a citizen of Qatar, was initially detained as an enemy combatant for his alleged activities as a sleeper al Qaeda agent while studying at U.C. Berkeley. But like Padilla his case was eventually transferred to a civilian court, appearing in early 2009 before the U.S. District Court in Illinois. He was convicted and sentenced to eight years in federal prison.

So under Bush trying Padilla, Reid, Lindh and al-Marri in civilian court after being read their Miranda rights was perfectly OK. In fact several hundred terrorist suspects have been tried and convicted in federal court, and are serving time in federal prisons. But under Obama reading Umar and Shahzad their Miranda rights and trying them in civilian courts is an affront to all decent Americans. What is astonishing about this level of cynical hypocrisy is that so few people are astonished by such behavior.

My right wing colleagues might counter that in some of the examples given above the suspects were first interrogated prior to being read their Miranda rights. Well, we know that in fact Shahzad was not immediately Mirandized after being pulled off the plane bound for Dubai. Deputy Director of the FBI John Pistole said that FBI agents interviewed the suspect under the "public safety exception" until satisfied there was no imminent threat. When Shahzad was later read his rights he waived them and began cooperating, providing "valuable intelligence and evidence" according to Pistole after being Mirandized.

The issue here, though, is one greater than timing, of when a suspect is Mirandized. The real issue is whether terror suspects should be tried in civilian court at all. Miranda is a distraction, a feint, a surrogate for another agenda. The Miranda question is being used by the GOP to promote tangentially the broader goal of preventing public trials for anybody suspected of terrorism, all under the guise of promoting national security.

The Republican positions on Miranda and public trials need to be put in context to understand the danger they pose to our republic. While couched in moderate language the ideas put forth by the GOP are quite radical. The GOP is proposing, in essence, that the government (which they distrust in all other arenas) be given the extraordinary power to detain any American citizen and that the suspect be denied the right to petition for a writ of habeas corpus, denied access by families and denied legal representation.

Republicans scoff at the idea that "Any society that would give up a little liberty to gain a little security will deserve neither and lose both" (multiple variations, usually attributed to Ben Franklin). Instead, the GOP believes that our safety can only be secured by sacrificing our rights; the same ones our founders foolishly thought were inalienable. Conservative Republicans claim to be for small government with limited powers. They want government off our backs. Government is the problem, not the solution. Yet they propose giving the government they so heartily disdain unlimited power to throw American citizens in jail with no trial. Go figure.

But we must also fight this attack on our most fundamental rights on the strength of some practical considerations beyond the historic warnings from our founders and past the fundamental inconsistencies in Republican philosophy. Even if we could afford to ignore Franklin's wisdom, the GOP's war on Miranda is based entirely on the false premise that by reading a suspect his rights, and granting him access to a lawyer, we lose a critical opportunity to gather essential intelligence to prevent an attack on the United States. That has proven to be untrue. As noted, Umar and Shahzad sang like birds after being Mirandized, and without ever being threatened with torture. In fact, Umar became talkative only because he was treated well and allowed access to family, who convinced him to cooperate. In contrast, we know that enhanced interrogations are ineffective:

• Former FBI Director Robert Meuller said in a December 2008 Vanity Fair interview that he knew of not one single planned attack that was prevented by information obtained through torture.

• FBI Agent Ali Soufan has written that:

"There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah [the first al-Qaeda suspect subjected to waterboarding and other harsh tactics] that wasn't, or couldn't have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions -- all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process."

• Major Matthew Alexander, who personally conducted 300 interrogations of prisoners in Iraq, has concluded that torture does not work, particularly in the "ticking time bomb" scenario so often quoted by those who support torture.

• The current U.S. Army Field Manual recognizes that "torture and inhumane treatment is ineffective."

• Brigadier General David R. Irvine wrote an article in 2005 providing a series of reasons "why torture doesn't work." What are his qualifications to draw that conclusion? He is a retired strategic intelligence officer who taught prisoner interrogation techniques and military law for 18 years with the Sixth Army Intelligence School.

History provides us with real life examples in which all Mirandized suspects have cooperated or have been convicted and none where enhanced interrogation has been effective. One would think that demanding us to trample on our most basic rights would require a high threshold, but the GOP has done so with no threshold at all. Perhaps the faux outrage and chest beating is yet another example of Republicans playing politics with our national security while draping themselves in the flag of patriotism. After all, the primary argument used by the GOP to undermine Miranda is that if we follow our own laws we endanger our country by making us vulnerable to attack and by forcing the government to reveal national security secrets in public trials. They hold this position in the face of abundant evidence to the contrary. But what patriotic American would not want to protect the country from attack? So I end with this quote:

"People can always be brought to the bidding of the leaders...All you have to do is tell them they're being attacked and denounce the pacifists for a lack of patriotism and exposing the country to danger. It works the same way in any country."

That gem is from one of history's great monsters, Hermann Goering. Personally, I'll take Franklin as my guide.

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