Name, Rank And Serial Number

By Big Tent Democrat, Section War on Terror
Posted on Tue Feb 02, 2010 at 09:15:21 AM EST
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Via Glenn Greenwald, Joe Klein laments the Mirandizing of alleged Christmas Day bomber Umar Farouk Abdulmutallab. Klein writes:

[T]he bomber is an enemy combatant. He doesn't have Miranda rights. It is entirely possible that we lost valuable intelligence as a result of this stupidity. We don't torture anymore and that is good. The notion that we don't even properly interrogate those who attack us seems unbelievable.

I do not understand Klein's argument. Mirandizing Abdulmutallab did not mean that interrogation has to stop. It merely advises him of his rights with regard to criminal proceedings. Interrogation could have continued even if Abdulmutallab invoked his right to an attorney (remaining silent was always an option for him, Mirandized or not.) Moreover, I am not sure what Klein imagines can be done to an "enemy combatant." Of course Klein says, no torture, so then what? The Geneva Conventions speaks to this issue:

Article 17

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.

Does this apply to enemy combatants? Article V of the Convention states that all the protections apply to any captured persons until determination of status by a competent tribunal. What does that mean? I think some folks believe that it permits for falling into some third category of person to whom neither the protections of the Geneva Conventions or the Constitution will apply. This is a misreading of the Geneva Conventions and the Constitution. Either the Constitutional guarantees will apply or the Geneva Conventions will apply. To wit, either the detainee is entitled to being Mirandized or he is entitled to stay silent, except for his/her identity.

I have disagreed with Glenn Greenwald on the question of preventive detention. But it is clear that The Joe Kleins of the world are basically demanding Bush administration policies regarding the War on Terror. As Glenn writes:

All of these attacks on the Obama administration really leave one wondering: what is it exactly that Bush and Cheney did wrong? Was it just the waterboarding (the official authorization for which was withdrawn several years before Bush left office and which, in any event, people like Richard Cohen and Michael Crowley still crave)? Everything else other than the "enhanced interrogation techniques" was good? What happened to all the profound talk about how they ruined our image in the world and violated our "core principles" and how we can simultaneously Stay Safe and adhere to our values -- which happened to be a central theme of Obama's successful presidential campaign? How can Democrats and media stars claim to find Bush and Cheney so distasteful as they simultaneously attack Obama for reversing their defining policies in a few isolated instances? In the areas of civil liberties and Terrorism, what exactly did Bush and Cheney do wrong?

People like Klein and Cohen are quite ignorant on the issues and writing from irrational fear. It seems pretty clear that they never really objected to the Bush Administration policies on the War on Terror. This is true for most of the Village.

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Name, Rank And Serial Number | 86 comments (86 topical)

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Just declare him "non-human" (5.00 / 1) (#14)
by ricosuave on Tue Feb 02, 2010 at 10:12:31 AM EST

I'm sure that there is Yoo memo on how to do this that could be dusted off and used. A presidential determination of the species of the accused could be a valuable tool in the war on terror. And it could have the added bonus of undermining the scientific basis of evolution.

In my view (5.00 / 4) (#31)
by Jeralyn on Tue Feb 02, 2010 at 11:33:46 AM EST

they should have Mirandized him when they first interfered with his movement on the plane. At that point, he was in custody and no longer free to leave. They had the duty to Mirandize him them. If he asked for a lawyer, they couldn't ask him any questions other than to request identification. If he waived his right to have a lawyer present during questioning, they could question him. If during questioning, he changed his mind and asked for a lawyer, they had to stop.

Normally, indigent people aren't appointed lawyers upon arrest but at their first court appearance. Our federal district court has a rule in place for heavy duty crimes like murder where the public defender's office is notified after the arrest so they can be there for questioning.

Peter is correct. The failure to Mirandize simply means no evidence obtained directly or indirectly from the questioning can be introduced in court. It doesn't mean the charges get dropped. And the suppression applies to derivative evidence as well as direct evidence -- anything they learn from what he tells them as well as what he told them.

No crime warrants exceptions to these policies or we are living in "24" country.

He was arrested for trying to blow up a plane while on the plane in this country. That's a federal criminal offense and upon arrest, he had to be Mirandized. At the moment of arrest, they had no idea AQ was involved. They should have taken him to the hospital, left him there for treatment, and then conducted their investigation beginning with his plane ticket, visa and ID papers. After "sharing" the information, as they now are so easily able to do, there could have been a joint determination as to the best forum to proceed.

Questioning him without advising him he didn't have to answer questions without a lawyer present was wrong. That's why they brought in a "clean team" the second time.

This is a big fuss by Republicans and the Klein's of the world over nothing. He will, through his lawyer, negotiate a deal to avoid a life sentence that involves his cooperation. They'll get his information, valuable or not, through legal means. There was no need to resort to illegal actions.

Miranda does require police to cease questioning if the suspect invokes his right to have a lawyer present. Here are Miranda rights.

Miranda (2.00 / 0) (#82)
by diogenes on Tue Feb 02, 2010 at 10:52:04 PM EST

So you mirandize him, he remembers that Jeralyn took great pride in representing Timothy McVeigh and figured that he was in the same boat, and he called Jeralyn to be his lawyer. Jeralyn happened to be on the plane, hypothetically, and took on the challenge. Do you think that she or any competent lawyer would let him say "boo"? They might talk in plea negotiations a month or two from the date of the bombing, in which case leads would be stale and any simultaneous bombings would have happened already.


You should write a post on this (none / 0) (#32)
by Big Tent Democrat on Tue Feb 02, 2010 at 11:38:46 AM EST

These are all very good points.


I thought about it days ago (none / 0) (#36)
by Jeralyn on Tue Feb 02, 2010 at 11:54:52 AM EST

but it seemed so elementary to me I didn't. I hate to even give "lip service" to these crazy misperceptions promulgated by the right.

Has anyone discussed where they would have taken him if, while he was in the hospital, they determined through independent investigation that in their view he was an "enemy combatant?" Surely not Gitmo, given Obama's promise to close it and the uproar that would have caused. What about the military brig in South Carolina like they did Jose Padilla?

While Obama jettisoned the term "enemy combatant" in a court brief in March, it's clear he is still willing to apply preventative detention to those associated with AQ, he just hasn't come up with a new term of art.


In terms of "enemy combatants" (none / 0) (#38)
by Big Tent Democrat on Tue Feb 02, 2010 at 11:56:30 AM EST

Absolutely there has been no change.

Dropping the phrase is meaningless.


I suggested that a transfer to the brig (none / 0) (#49)
by Peter G on Tue Feb 02, 2010 at 12:15:15 PM EST

in So. Carolina was a possibility in this case back on 12/28, in this comment. The follow-on comments after mine actually got into this same Miranda discussion that we are having again today.


: glad to see you thought of it too (none / 0) (#58)
by Jeralyn on Tue Feb 02, 2010 at 12:26:46 PM EST

We're thinking alike again (hardly a surprise, I know.)

just to add (none / 0) (#33)
by Jeralyn on Tue Feb 02, 2010 at 11:40:43 AM EST

to "And the suppression applies to derivative evidence as well as direct evidence -- anything they learn from what he tells them as well as what he told them" -- an exception is if the police can show they had an independent source for the derivative information and would have learned it anyway. And Peter is correct that the suppression only applies to the person being questioned, not third partys. It only applies to the person whose constitutional rights were violated by the questioning.


Fruit of the poisonous tree (5.00 / 1) (#37)
by Big Tent Democrat on Tue Feb 02, 2010 at 11:55:34 AM EST

at least that is how I remember it from law school.


yes, exactly (none / 0) (#40)
by Jeralyn on Tue Feb 02, 2010 at 11:57:40 AM EST

: and (none / 0) (#61)
by BackFromOhio on Tue Feb 02, 2010 at 12:29:45 PM EST

exception to fruit of poisonous tree is "inevitable discovery"? I've watched a couple of episodes on Law & Order in which that doctrine is argued before a judge!

Please clarify your statement above (none / 0) (#35)
by coast on Tue Feb 02, 2010 at 11:50:53 AM EST

"when they first interfered with his movement". My understanding was that he was subdued by fellow passengers. There was no involvement of any air marshall or other law enforcement. Who was suppose to Merandize the terrorist....sorry alleged unhappy passenger.


The triggering situation for Miranda (5.00 / 1) (#42)
by Peter G on Tue Feb 02, 2010 at 12:00:30 PM EST

to apply is "in official custody." Which is interpreted by the courts, as TL says, as meaning, when a reasonable person would not have felt free to leave, after the initiation of police contact. I would say that a "citizen's arrest" situation, as you had here, does not trigger any Miranda rights; in other words, any incriminating statement the suspect may have "volunteered" (blurted out) while being subdued by other passengers would be admissible in court against him.


agreed (none / 0) (#46)
by Jeralyn on Tue Feb 02, 2010 at 12:07:44 PM EST

How would that work (none / 0) (#47)
by jbindc on Tue Feb 02, 2010 at 12:10:43 PM EST

in this situation? He was taken from the plane and put in an ambulance and taken to the hospital - injured? Should he have felt "free to leave" in that case?

I'm genuinely curious - or would it be if he was handcuffed to his hospital bed (which I don't know if that happened)?


: the complaint says he was (5.00 / 1) (#53)
by Jeralyn on Tue Feb 02, 2010 at 12:22:37 PM EST

taken into custody by BCP (border control protection) agents "upon landing." Then he was transported to the hospital -- I assume at their direction. So yes, he was in custody when he arrived at the hospital. What if the hospital had cleaned his wound and discharged him? Would BCP have let him go? Of course not. He's in custody.

when law enforcement first (none / 0) (#39)
by Jeralyn on Tue Feb 02, 2010 at 11:57:20 AM EST

encountered him. Not the passengers. The passengers stopped him but turned him over to law enforcement. At the moment law enforcement interfered with his freedom of movement, he was "in custody." At that point he was no longer free to leave.


No legal authority (none / 0) (#43)
by jbindc on Tue Feb 02, 2010 at 12:01:52 PM EST

was on the plane - he was subdued and restrained by passengers, who said he remained quiet. But even if he hadn't, he would have had no legal right to be Mirandized while on the plane.

As he was being taken off the plane, he lied and tried to tell the flight crew there was another bomb on board (although thankfully, none was found). He was handed over to Customs and local police. The CBP officers and an ambulance team took him to the burn unit at the University of Michigan Hosptial. He allegedly made incriminating statements while in the ambulance and again to the doctor in the ER.

FBI agents arrived a few minutes later and were briefed by the CBP officers, and after about an hour, they began to interview Adbdulmutallab, which is where he confessed and made other incriminating comments.

If it comes to that, the prosecutors can and probably will argue the exception to Miranda, which is:

Investigators are allowed to question a suspect without providing a Miranda warning if they are trying to end a threat to public safety.

So, it will be interesting to watch how this plays out.


Ah, yes, the claim of another bomb (5.00 / 1) (#51)
by Peter G on Tue Feb 02, 2010 at 12:19:49 PM EST

... I had forgotten that point. The Supreme Court some years ago articulated an "emergency-safety" exception to Miranda, which would probably apply in that situation, to the extent he was asked questions to ascertain whether and where another bomb might be located.


: It sounds like (none / 0) (#54)
by jbindc on Tue Feb 02, 2010 at 12:24:27 PM EST

He wasn't asked any questions until the FBI got to the hopsital. Could any incriminating statements he made to the doctor be used against him, even though he had been in CBP "custody" I guess (in an ambulance)? It's admissible hearsay, as it would be statements against interest (even though the doctor is a state employee).

Everyone was detained upon landing (none / 0) (#50)
by Jeralyn on Tue Feb 02, 2010 at 12:17:41 PM EST

Here's the initial complaint.

They took him into custody upon landing according to the Complaint and then questioned the other passengers. I assumed they boarded the plane to escort him off. That's the moment he was "in custody." If the flight crew walked him off the plane, then the moment of "hand-over" is the moment he was placed in custody.

It's immaterial whether it was on the plane or at the jetway or 10 yards later. The issue is the statements he made to law enforcement. At the first contact, wherever it took place, it's clear he was not free to leave.


Any confession on his part is (none / 0) (#85)
by gyrfalcon on Tue Feb 02, 2010 at 11:53:12 PM EST

totally irrelevant to this case, either legally or politically.

Because of the multiple eyewitness and clear physical evidence, he will be convicted in whatever sort of civilian court or military tribunal he's tried in.

The political issue, or military or intelligence issue, is the additional information he might or might not give about his contacts in Yemen, whatever (presumably really very little) he has about AQAP, other plots afoot, etc. None of those have anything to do with his trial, except insofar as he's able to make a deal for a very slightly less harsh sentence.


I didn't think that certain airspace (none / 0) (#78)
by Militarytracy on Tue Feb 02, 2010 at 04:45:23 PM EST

was subject to laws of the land. That's just me on my second double margarita sitting in the Atlanta airport trying to get flying brave and thinking that that is so because when you are doing the International thing it is has those duty free zone.


Here's to having uneventful flight (none / 0) (#81)
by nycstray on Tue Feb 02, 2010 at 05:16:16 PM EST

{clink} and a positive outcome. (this is for an eval, right?)


: We are in CO Sprgs now (none / 0) (#86)
by Militarytracy on Thu Feb 04, 2010 at 09:41:58 AM EST

This is sort of a third opinion I suppose you could say. This is Josh's ortho doctor from birth to five years, and she has always been able to give me a long term view of the terrain and she has a lot of experience with arthogryposis outside of simply amputating. It can be a hard place to be, on the cutting edge of something medical and pushing the edge. You get surrounded by a lot of brilliance, a lot of egos, a lot of people pushing what they have created or perfected over other options.....not always clear open waters to navigate. My Aunt is a wonderful hostess though. You can want for nothing while under her roof.

The guy allegedly (lots of eyewitnesses here) (5.00 / 1) (#57)
by BobTinKY on Tue Feb 02, 2010 at 12:26:01 PM EST

committed a crime. He tried to blow up an airliner, in air, with people on board. Attempted mass murder etc., etc.

Those apprehended for crimes get read their Miranda rights. What is the legal quesiton here? Why do so many insist "terrorism" be treated differently? It's organized crime with a motive of political purpose. It is still crime.

The country needs to adopt a more adult-driven perspective on this. I got a better chance of winning Powerball than being a terrorist victim. Not something that keeps me up at night worrying about me and my family, despite the Governments intense efforts to frighten. I worry much more about being without a job or adequate medical coverage, retirement etc., etc.

And if you want to end the specific AQ terrorist threat? Here's a cost effective idea. Withdraw US troops from Muslim nations, we can't afford it anyway.

I still have mixed feelings (5.00 / 2) (#79)
by Militarytracy on Tue Feb 02, 2010 at 05:03:29 PM EST

about all this enemy combatant, interrogation, detention stuff. I am impressed though that you continue to make solid efforts to interpret the law alongside providing as liberal a national security as possible. You continue to address providing a means to dealing with the very real threats out there and preserving the rights that Americans have and need. This is not an easy field to play on as a leftwinger, even though we have a sitting Democratic President with addressing extreme danger to national security on his plate. Lefty bloggers suck at this, left leaning independents grasp this playing field though and vote for those who can do it and provide it. Maybe Lefty bloggers should always suck at this too except for that a-hole Armando. I don't think I want to get too good at all this, and I definitely don't need or want cheerleaders with Pom Poms.

Illogical (4.50 / 2) (#41)
by mmc9431 on Tue Feb 02, 2010 at 11:58:29 AM EST

I've never understood the logic from the right that it's necessry to destroy or ignore the principles of this country in order to protect it.

Aren't these the very values that we're at war to protect?

no need for confessions (2.00 / 0) (#83)
by diogenes on Tue Feb 02, 2010 at 11:01:58 PM EST

For all anyone knows, there were four planes or forty planes with bombs on them instead of one. On 9/11 there were four planes, after all. The criminal case was clinched by the witnesses and physical evidence; if Mirandizing him reminded him of his right to shut up, then it would only cut off potential evidence of what is happening in the here and now. The police have the discretion to forfeit any confessions they get if they believe that the immediate gain to public safety exceeds the risk of not being able to use the confession in evidence.

In this particular case (none / 0) (#1)
by jbindc on Tue Feb 02, 2010 at 09:22:41 AM EST

I don't think the argument is they couldn't interrogate him - I think it's that he was talking freely for something like an hour, then he was Mirandized, and then he stopped talking altogether (which was his right). I think many of the righties argument is that he could have continued talking and gave more valuable information, had they not treated him as a regular criminal and read him his rights.

If Mirandizing an individual (5.00 / 1) (#52)
by BackFromOhio on Tue Feb 02, 2010 at 12:21:12 PM EST

means they will never talk, one wonders how the police in this country ever get the job done. I think Joe Klein is ignorant of how justice works in this country.


: I think the reality is that almost (none / 0) (#60)
by MKS on Tue Feb 02, 2010 at 12:29:24 PM EST

everyone talks....trying to please the authority figure--who has a gun.....
It takes a lot of guts to tell a cop no....

Well (none / 0) (#2)
by Big Tent Democrat on Tue Feb 02, 2010 at 09:27:41 AM EST

Somehow I doubt that story.

If he was talking freely, I can not imagine someone decided to Mirandize him then.

Personally, I doubt he knew anything of value anyway.


Both WH and Republicans agree (none / 0) (#7)
by jbindc on Tue Feb 02, 2010 at 09:40:24 AM EST

He talked for 50 minutes before he was Mirandized

White House press secretary Robert Gibbs on Sunday defended the decision to read alleged bomber Umar Farouk Abdulmutallab his Miranda rights after just 50 minutes of interrogation, saying that "FBI interrogators believe they got valuable intelligence and were able to get all that they could out of him."
"That decision was made by the Justice Department and the FBI by experienced FBI interrogators, Gibbs said on "Fox News Sunday." "But make no mistake -- Abdulmutallab was interrogated and valuable information was gotten by those experienced interrogators."
After he was read his rights, Abdulmutallab stopped cooperating with investigators.
"The Department of Justice made the right decision, as did those FBI agents," Gibbs said.

I'll stick to what is in quotes (none / 0) (#8)
by Big Tent Democrat on Tue Feb 02, 2010 at 09:45:30 AM EST

""FBI interrogators believe they got valuable intelligence and were able to get all that they could out of him."

Sounds about right to me.


I'm not arguing (none / 0) (#9)
by jbindc on Tue Feb 02, 2010 at 09:49:01 AM EST

I just think it looks a little weird interrogating them and THEN reading him his rights. Looks like CYA maneuvers....


: I agree (none / 0) (#10)
by Big Tent Democrat on Tue Feb 02, 2010 at 09:56:12 AM EST

I think that is the question -- should he have been Mirandized at the beginning? Personally, I doubt it was necessary in that the evidence against him appears to be overwhelming.
I think the decision to not Mirandize immediately was the right one. He probably spilled everything he knew in an hour.
I assume they tried to get him to say it again after being Mirandized and he balked.

Besides (none / 0) (#3)
by Big Tent Democrat on Tue Feb 02, 2010 at 09:28:51 AM EST

If they think it would be productive, the Obama Administration could declare him a prisoner of war now and voila, all Joe Klein's dreams come true.


But don't those righties... (none / 0) (#4)
by kdog on Tue Feb 02, 2010 at 09:29:05 AM EST

wanna see him tried, convicted, and caged? That requires a Miranda warning on US soil...at least on paper. In practice Miranda has always been optional, or so said my defense attorney (in so many words) when I said I was never given my warning...I was told "it doesn't matter".

As BTD points out, getting your Miranda warning doesn't suddenly endow you with the ability to remain silent...silence is a right we all have and control by birthright. You can still Miranda, to ensure no problems when it comes time for trial, and then interrogate.


Compliance with Miranda (5.00 / 3) (#12)
by Peter G on Tue Feb 02, 2010 at 09:58:01 AM EST

is a prerequisite to using his statements against him in court, as affirmative evidence, in a criminal case. Failure to "mirandize" does not require that a case be dropped, Kdog; it's a rule concerning the admissibility of statements at trial. (I'm sure that's what your lawyer was telling you. If you didn't say anything to the police after arrest that the prosecutor would want to use against you at a trial, then the failure to "mirandize" indeed "doesn't matter.") Most detainees or arrestees disregard the Miranda warnings and talk anyway after waiving (how knowingly is another question) their rights. Some pay attention, however, and invoke their rights, at which point questioning must stop or the answers won't be admissible in court, as evidence in the prosecutor's direct case. "Unmirandized" statements can be used as leads to continue an investigation, and can be used as evidence in court against someone else. ("Unmirandized" statements can even be used against the defendant in a criminal case to impeach his credibility, if he testifies to the contrary of those statements, so even when no warning was given a defendant who talks instead of remaining silent may effectively be prevented from testifying if the case later goes to trial.) As a result of these complicated rules, whether to give the warnings or not can be a tactical decision by the police interrogators, sometimes after consultation with prosecutors, about whether the information they are seeking is needed to prosecute this guy or not.


: Thanks Peter... (none / 0) (#17)
by kdog on Tue Feb 02, 2010 at 10:19:07 AM EST

So there was no "legal" need to Miranda warning in this case, the prosecution will not need any statements to convict (I would think), just the witnesses and the physical evidence. Still morally the right thing to do, in all cases imo, but not legally necessary. Got it.

Exactly (none / 0) (#11)
by gyrfalcon on Tue Feb 02, 2010 at 09:57:30 AM EST

All Miranda does is make sure you actually know that you have those rights. Which seems, um, fair.


ll Miranda does is make sure you actually know (none / 0) (#16)
by Abdul Abulbul Amir on Tue Feb 02, 2010 at 10:17:15 AM EST

At one level that is true. However, in some cases it is a reminder to shut up.


use it or lose it (5.00 / 0) (#44)
by Jeralyn on Tue Feb 02, 2010 at 12:04:10 PM EST

As I always say, the jails are filled with people who thought if they could only tell the cops their side of the story, the cops would see it their way.

Miranda rights and the 5th amendment privilege against self-incrimination are there for good reason. Use them.

As I taught the TL kid when he was 10, if a cop stops him and asks him to waive his rights, he should politely respond, "I'm sorry, sir but I only wave the flag." I told him the "sir" is very important, and while he may get beat up and thrown in jail for being a smart alec, at least he'll know he did the right thing.


: A supervisory level FBI agent (none / 0) (#56)
by MKS on Tue Feb 02, 2010 at 12:25:39 PM EST

with 20 years experience once told me that he rarely encountered people or defendants that would not talk to him. He said the desire to comply and talk was overwhelming.
It sounded like a desire to please those in authority....Like the Milgram or Stanford experiments....
I will never, ever talk to the cops. Get me an immunity agreement in writing first--or I take the Fifth. If they were to give me a written immunity agreement, I would then exercise every privilege known to mankind....Spousal, Attorney-client, doctor/patient....whatever....

So does (none / 0) (#19)
by jbindc on Tue Feb 02, 2010 at 10:21:48 AM EST

watching any cop or legal-related TV show.....


Not everyone watches (none / 0) (#20)
by CST on Tue Feb 02, 2010 at 10:24:42 AM EST

Law and Order.

Especially if you live outside the U.S.


all the more reason we should (5.00 / 1) (#45)
by Jeralyn on Tue Feb 02, 2010 at 12:06:10 PM EST

strictly abide by Miranda for foreign nationals. In other countries, people don't have these rights and think they have to talk to the police. If our police don't tell them differently, they wouldn't think of invoking their right to remain silent.


: agreed (none / 0) (#48)
by CST on Tue Feb 02, 2010 at 12:11:12 PM EST

most Americans probably do know already since it is ingrained in our culture.
But I would not assume most foreigners know.

Stupid cop shows... (none / 0) (#21)
by kdog on Tue Feb 02, 2010 at 10:26:15 AM EST

are the reason I misunderstood Miranda till Peter sorted me out...they give you the impression that if you don't get the spiel you walk automatically...or at least thats the impression I got:)


Yeah but cop shows (none / 0) (#25)
by jbindc on Tue Feb 02, 2010 at 11:08:47 AM EST

Are funny in that defense lawyers talk about evidence like "it's only circumstantial" (which doesn't matter - it carries the same weight as "direct evidence"), or do things where they show those brought in for questioning (before being arrested) demanding lawyers and the cops stop asking them questions, which is wrong - those in for questioning don't have the right to an attorney (if they are "free to leave").

So, yeah, cop shows get it wrong in the name of drama all the time.

But, here's a little nugget of trivia: Dickerson v. U.S. was a decision which upheld the requirement that Miranda be read to criminal suspects. William Rehnquist, in writing the opinion for the majority in (joined by O'Connor, Stevens, Ginsburg, Souter, Kennedy, and Breyer), wrote that, because of the prevalence of American television and movies that showed the police routinely reading suspects their rights, Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture."


"Free to leave" (none / 0) (#59)
by MKS on Tue Feb 02, 2010 at 12:28:11 PM EST

Cops have guns and badges and start telling you what to do--not asking, telling--so who's really going to believe they have a choice....


: Again (none / 0) (#68)
by jbindc on Tue Feb 02, 2010 at 12:54:48 PM EST

This guy was in an ambulance and then freely chit chatting with the doctor, so I don't think he was worried about "guns and badges".

Interrogators can lie to suspects (none / 0) (#66)
by MKS on Tue Feb 02, 2010 at 12:49:40 PM EST

unless the suspects are cops.....

You can lie to a suspect to get them to talk....But police unions have made that tactic off limits when interrogating cops....


Also if suspects lie in return (none / 0) (#67)
by jeffinalabama on Tue Feb 02, 2010 at 12:54:39 PM EST

they can be charged with impeding the investigation, or a host of local or state laws concerning cooperation. I don't know if every state has laws concerning lying to police, but Arizona and Alabama do...


That's why (none / 0) (#69)
by jbindc on Tue Feb 02, 2010 at 12:55:17 PM EST

Martha Stewart went to prison...


She tried to talk her (none / 0) (#70)
by MKS on Tue Feb 02, 2010 at 01:01:51 PM EST

way out of an insider trading charge....

If he had said nothing, she would have been fine--and free.

So, Martha Stewart is Exhibit A to Jeralyn's comments about prisons being full of people who just tried to get the cops to see it their way.


Is "she" had said nothing..... (none / 0) (#71)
by MKS on Tue Feb 02, 2010 at 01:02:58 PM EST

: "If she" had said.... (5.00 / 1) (#72)
by MKS on Tue Feb 02, 2010 at 01:03:24 PM EST

It was called (none / 0) (#74)
by jbindc on Tue Feb 02, 2010 at 01:05:11 PM EST

"obstruction of justice" -by someone who knew better. This was not a poor litte, ignorant defendant. She was on the NASDAQ board - she knew what she did was wrong!


: No, she was too smart for her own (none / 0) (#75)
by MKS on Tue Feb 02, 2010 at 01:17:29 PM EST

good....
But Rove was able to talk his way out of a perjury charge in the Plame investigation. Went back to the grand jury repeatedly to clarify--and it worked....

: Tiger Woods got it right (none / 0) (#76)
by MKS on Tue Feb 02, 2010 at 01:18:55 PM EST

He refused to talk and walked....

what I dont understand (none / 0) (#5)
by Capt Howdy on Tue Feb 02, 2010 at 09:31:06 AM EST

is why anyone still takes Joke Line seriously.

Michael Hayden's (none / 0) (#6)
by lilburro on Tue Feb 02, 2010 at 09:37:00 AM EST

op-ed seems to be undermining the morale of the CIA, no? How will the country ever stay safe!!

Please!!!!!!!!! (none / 0) (#13)
by samsguy18 on Tue Feb 02, 2010 at 10:12:12 AM EST

The bomber had severe burns in an area where the pain would be excrutiating ! I find it hard to believe any information was forthcoming. I find this whole story a manipulative tactic.

Obviously you never watch 24 (5.00 / 2) (#15)
by Big Tent Democrat on Tue Feb 02, 2010 at 10:13:51 AM EST

: or perhaps Inglourious Basterds (none / 0) (#30)
by Salo on Tue Feb 02, 2010 at 11:33:22 AM EST

Ever hear of morphine? (none / 0) (#84)
by gyrfalcon on Tue Feb 02, 2010 at 11:44:08 PM EST

Actually, the government can get more (none / 0) (#18)
by scribe on Tue Feb 02, 2010 at 10:21:16 AM EST

information from someone after Mirandizing him as opposed to if he'd invoked the Geneva Conventions.

In short, after Mirandizing him, he can talk if he wants and answer any questions he chooses to. The interrogation can continue until he decides to stop, until the interrogators get all they can, or until there is no point in going on. If he chooses, post-Mirandizing Q&A can encompass everything he knows.

OTOH, the Geneva Conventions and military discipline impose a positive duty on the combatant to say nothing, in the words of the post: "name, rank and serial number". Saying anything more than that actually exposes the captured prisoner to retributive punishment by his own military once returned from captivity, as well as more prompt retribution from his fellow captives.

This duty to not talk is drilled into every combatant from minute #1. A good example of the instruction/propaganda (sadly, I have not been able to find a video link) is in the WWII training film titled "Resisting Enemy Interrogation", made by your government and nominated for a "best documentary" Oscar. It impresses in manifold, timeless ways (it was still in use when I was in the military about 25 years ago; we had to watch it) the singular duty of the combatant to say nothing more than name, rank and serial number.

A couple more links - TCM has shown it, and the IMDB listing.

No, the point of the Villagers' carping is twofold: Those sick f*cks want to torture people, and they want to get rid of Miranda.

BTD (none / 0) (#22)
by Abdul Abulbul Amir on Tue Feb 02, 2010 at 10:29:11 AM EST

While that is true, it places ZERO restrictions on what may be asked of such prisoners. Further the Geneva Conventions do not require that we remind the prisoner of his options. The Geneva Conventions do not require that no more questions be asked after the first or even repeated refusals to answer. The Geneva Conventions do not require a lawyer be provided to advise the prisoner.

bound to give only . . . (none / 0) (#23)
by Big Tent Democrat on Tue Feb 02, 2010 at 11:01:55 AM EST

You never watched Hogan Heroes.


: Sure, but I see nothing, I hear nothing (none / 0) (#62)
by MKS on Tue Feb 02, 2010 at 12:30:19 PM EST

Of course (none / 0) (#24)
by Big Tent Democrat on Tue Feb 02, 2010 at 11:07:40 AM EST

Even after Mirandized, or rather especially after Mirandized, interrogators can continue to ask questions.


The decision itself says otherwise, BTD (none / 0) (#27)
by Peter G on Tue Feb 02, 2010 at 11:24:45 AM EST

The Supreme Court in Miranda actually said that if the suspect, after being warned, does not affirmatively acknowledge and waive his rights, then "all interrogation must cease." ... although in practice, given the way the consequences are structured (see my earlier comment, #12), what you say is true for all practical purposes. And I understand, of course, that by "after [being] Mirandized," you mean "after being Mirandized and invoking his right to remain silent," ....


: See that now (none / 0) (#34)
by Big Tent Democrat on Tue Feb 02, 2010 at 11:40:46 AM EST

But I am curious about it. Stop or what? what happens if they do not stop questioning?
the information is excluded. Any other consequences?

No, if he invokes his right (none / 0) (#55)
by Jeralyn on Tue Feb 02, 2010 at 12:25:15 PM EST

to a lawyer during questioning, they have to provide one or stop questioning.

Of course, any lawyer (except maybe the one Najibullah Zazi hired) would immediately tell their client not to answer questions.


And if they do not? (none / 0) (#63)
by Big Tent Democrat on Tue Feb 02, 2010 at 12:30:49 PM EST

What happens? The information is excluded in criminal proceedings right?

I am not looking at it from the same perspective as you are.


correct (none / 0) (#64)
by Jeralyn on Tue Feb 02, 2010 at 12:34:31 PM EST

the information is not allowed to be used in the Government's case in chief at trial. It can be used for impeachment should the defendant take the stand and testify differently or if the police have an independent source for the information and show attenuation from the taint.


I am not disagreeing w/Jeralyn, (none / 0) (#65)
by Peter G on Tue Feb 02, 2010 at 12:49:25 PM EST

by the way. Even though my comments in this thread have been emphasizing the specific and sometimes limited consequences of a violation of Miranda -- exclusion of evidence -- I actually do agree w/TL that it is correct, in theory, to view the Miranda decision as creating a set of "rights" that the arrested person enjoys while in police custody. It is not sufficient or correct to view Miranda as having created only a rule of evidence (inadmissibility) that the defendant can invoke in the courtroom if certain police practices were not followed. In real life, however, it might as well be the latter.


So there could be some type of Bivins action (none / 0) (#73)
by Big Tent Democrat on Tue Feb 02, 2010 at 01:04:02 PM EST

or something?


: Not according to Justice Thomas (none / 0) (#77)
by Peter G on Tue Feb 02, 2010 at 01:28:24 PM EST

and a split plurality of the Supreme Court in the case of Chavez v. Martinez, 538 U.S. 760 (2003). If Miranda created any "rights" they are not constitutional in nature, so this version goes, only "prophylactic measures" designed to protect against a risk of constitutional violations that exists in the context of custodial interrogation. No constitutional right is or can be violated until and unless the improperly-obtained statement is used in court against the defendant. But as you will see, this issue is controversial and difficult, and the Court did not muster a majority for its rationale or ruling. (A majority, however, did agree with Justice Souter than the interrogation of this suspect, in the hospital while suffering wounds (reminiscent of the case under discussion in this thread), may have violated the arrestee's substantive due process rights.)

Sooo, just wondering...is Miranda (none / 0) (#26)
by oldpro on Tue Feb 02, 2010 at 11:21:55 AM EST

gonna be on the final?

Yes, definitely (5.00 / 1) (#28)
by Peter G on Tue Feb 02, 2010 at 11:25:33 AM EST

... or it should be, to graduate from 10th grade, in fact, if you ask me.


: We're locking 'em up young... (5.00 / 1) (#80)
by kdog on Tue Feb 02, 2010 at 05:05:19 PM EST

better make it 4th grade, and even that is cutting it close.

Hello you have reached the Klien Line... (none / 0) (#29)
by Salo on Tue Feb 02, 2010 at 11:31:56 AM EST

....if you are calling from a touch tone phone press 1. for Joe 2. for Ezra and 3. for Yves.