On Miranda, Terrorism, and Liberty

Much debate lately about the fact that the “underwear bomber”, Umar Farouk Abdulmutallab, was read his Miranda rights after his arrest on Christmas Day for trying to blow up an aircraft on its way into Detroit from Amsterdam. I’ve watched gleefully as the most foolhardy discussions around this issue have unfolded. It was even a campaign ad issue in the Massachusetts Senate election, brought up by Scott Brown. And the fact that there’s a debate about the issue is laughable in so many ways that I don’t even know where to start.

The most obvious place to depart from is the origin of ones rights in the United States of America – the Constitution, specifically the Fifth and Sixth Amendments thereto. The rights we associate with the Miranda warning derive specifically from the Fifth Amendment’s protections from self-incrimination. The Sixth Amendment guarantees the right to a speedy public trial, the right to face one’s accusers, the right to legal counsel, etc etc.

The debate as I’ve seen it seems to suggest two glaring misconceptions exist amongst many people. The first is the idea that the rights affirmed in the United States Constitution apply only to U.S. Citizens. The second is that by reading Abdulmutallab a Miranda warning, investigators “gave” him rights he wouldn’t otherwise have, or somehow afforded him some special privilege he would otherwise not have had. These are both completely, utterly, demonstrably false, and the parroting of these assertions has disturbing implications for those of us who value civil liberties dearly.

Let’s debunk the first assertion. The best way I’ve seen this done is to suggest an alternate scenario, and the best one I’ve seen is to suppose that a Canadian tourist in New York City is arrested for shoplifting in a souvenir shop. Being a non-citizen, would he then have no entitlement to legal counsel, no right to remain silent, etc? Of course not. In fact, if you look at the Miranda warnings used in states along the US border, they actually add on to the “standard” warnings by including the right to consular access. The reality is that anyone arrested on suspicion of a criminal act within the jurisdiction of the United States of America is entitled to the protections of the Bill of Rights. One’s citizenship is irrelevant.

This argument then goes to the “enemy combatant” discussion fairly quickly – the idea that these folks aren’t criminal suspects but rather “unlawful enemy combatants” and therefore not entirely to legal protections with which we’re all generally familiar. Again, this comes down to jurisdiction. Under US law, an aircraft bound for the United States are considered “special aircraft jurisdictions of the United States”, according to Section 46501(2)(A) of Title 49, United States Code, and Section 31(b) of Title 18, United States Code. That means that the enemy combatant status is not applicable – unless it’s set out by a legal/judicial process.

That process was used in the case of Jose Padilla, who was eventually returned to the criminal justice system, convicted therein, and imprisoned. This result came only after a series of legal battles over the legality of the declaration. The logical and rational person has to ask, then, “Why?” Why go through a complex series of legal hoops to declare this status pointlessly, when the criminal justice system is more than suitable to deal with the heinous acts alleged in the indictment. This guy is bound for prison for a very long time, anyhow.

The answer seems to lie in the idea that without according Abdulmutalab the rights that it seems clear he is entitled to, the people criticizing the process think that the US Government could somehow override any right he has to maintain silent. Presumably, they are advocating torture in some form – I can only think of “Ve Haff Vays Off Makink You Talk”. Given the international revulsion over allegations of torture, the wide body of evidence that suggests it doesn’t extract information that is accurate or valuable, and the fact that it defies the very ideals the United States is supposed to stand for, you can see why this is a disturbing idea.

Never mind that, Adbulmutallab is talking anyhow. Why? Because of good, old fashioned leverage. The FBI brought his family in to talk to him, and they have convinced him to be a little more forthcoming with information in the hopes that he might earn some mercy at the hands of the courts. This information, obtained though cooperation rather than coercion, will likely be much more valuable and useful than anything that could be waterboarded out of him.

So I think we’ve thus debunked the second assertion now, that the acknowledgement of the man’s rights somehow impeded the obtaining of actionable intelligence.

The thing of it – the part that seems to escape these people – goes back to principles. I’m reminded, somewhat tangentially, of Martin Niemoller’s view – he overlooked the offensive acts of the Nazis when they didn’t directly affect him, and when they did, there was no one really left to stand up for him. Those who believe that liberty is sacred cannot abide the trampling of others’ liberties, even if those people are distasteful in their acts and words, because to do so sets the precedent that the same fate could befall them. The United States’ entire foundation for its Weltanschauung is that it is a land of liberty and justice for all – a land where freedom is paramount. Those ideas are being attacked under some insidious pretenses and those attacks are being defended by those who claim to want to protect them. Standing idly by is not an option.

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