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You Have the Right to Remain Silent…
McCain, Miranda, and Common Article 3.


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Andrew C. McCarthy

A number of friends and colleagues (both conservative and liberal) have either quarreled with or expressed alarm about my contention that the 2005 McCain Amendment conferred Miranda rights on alien enemy combatants. This contention has been the subject of a 2005 article (here) and a Corner Post (on Tuesday). They say I am making the McCain Amendment out to be much more consequential than it was — which is funny because, at the time, they all seemed to think it was pretty consequential. Why else did we need to pass it?

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For my part, the argument is welcome, and I’d be delighted to be wrong — although you may not want to bet the ranch that I am (as Congress and the president have already done).

To oversimplify for explanation’s sake, the McCain amendment extends the Fifth Amendment privilege to alien enemy combatants held overseas. It did this for the express purpose of clarifying the meaning of the terms “cruel, inhuman, and degrading treatment” (CID) in the United Nations Convention Against Torture. (That itself is ironic because Senator McCain, former Secretary of State Colin Powell, and others who supported the McCain Amendment are now faulting the Bush administration for trying to clarify impossibly vague terms in the Geneva Conventions’ Common Article 3.)

Now, the Fifth Amendment encompasses many things that plainly have nothing to do with CID. For example, it specifies a right to a grand-jury indictment, to double-jeopardy protection, and to just compensation for any government taking of property. It also has one protection that undoubtedly does relate to CID, namely, the right not to be deprived of life, liberty, or property without due process of law. (Due process has been held by the Supreme Court, in Rochin v. California (1952), for example, to prohibit government conduct in the collection of evidence that would “shock the conscience” of the court — a highly subjective test.)

Finally, the Fifth has a protection that may or may not relate to CID, namely, the Self-Incrimination Clause. That is the right of a defendant not “to be compelled in any criminal case to be a witness against himself.” It is this provision that causes me to say the McCain Amendment requires Miranda warnings. 

According to my disputants, the McCain Amendment literally grants Fifth Amendment protection only insofar as government conduct could be considered “cruel, unusual and inhumane.” (As the McCain Amendment states: “the term ‘cruel, inhuman, or degrading treatment or punishment’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth … Amendment” (emphasis added).)

On this view, because the failure to give Miranda warnings to detained combatants is not “cruel, unusual or inhumane,” Miranda must not be covered by the McCain Amendment’s extension of Fifth Amendment rights.

I would like to believe this is true — and it is certainly an argument I would make if I were trying to make the contra case. Alas, however, I am neither an advocate for a client nor in the position of being able to dictate what the law is. Rather, I am trying to figure out and advise people what the Supreme Court would likely find the law is. 

Here, it is worth remembering (how could we forget?) that the whole purpose of the McCain amendment was to regulate coercive interrogation. The amendment was the direct product of an overwrought debate over something that was already illegal — namely, torture. Its purpose was to crack down on sub-torture conduct (i.e., cruel, inhuman, or degrading treatment) as if it were torture so that, henceforth, the United States could not even be credibly accused of torture.

Plainly, leaving aside the afore-described due-process clause (which could be considered a catch-all), there is only one provision of the Fifth Amendment that, both on its own terms and according to the Supreme Court, directs itself to coercive interrogation. That is the self-incrimination clause.

My critics contend that Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer (and perhaps others) would hold that the McCain Amendment — the animating purpose of which was to prohibit coercive interrogation, and the text of which extends Fifth Amendment protections — somehow does not implicate the Fifth Amendment’s specific textual protection against coercive interrogation. Senator McCain, President Bush, and an overwhelming majority of Congress may be willing to roll that dice, but why should I be? Why should the rest of us be?

This Supreme Court has already gone out of its way to find that Common Article 3 of the Geneva Conventions, which literally relates only to civil wars, somehow governs our patently international conflict with al Qaeda. To come to this conclusion, it had to ignore clear provisions that say Geneva rights, including Common Article 3, are supposed to be enforced diplomatically — i.e., not by courts. Moreover, the same Court has found that questioning which merely fails to alert a suspect that he has a right to counsel is constructively coercive and violates the Fifth Amendment.

Knowing all that, you want me to assume this same Court would find that a constitutional provision directed at coercive interrogation really has nothing to do with coercive interrogation? That it is not “cruel” or “inhumane” to coerce a confession? You can dream on if you’d like, but I’m not drinkin’ the Kool-Aid.

If I am right that the courts, including the Supreme Court, would find the McCain Amendment provides alien enemy combatants held overseas with the Fifth Amendment right against compulsory self-incrimination, then it is unavoidable that Miranda warnings must be given.

The Supreme Court has long held that the failure to provide Miranda warnings (i.e., to tell the suspect, among other things, that he has a right not to answer any questions and to have a lawyer, paid for by the public, present for any questioning) is constructively coercive. In modern times, however, the Court has gone way beyond that.

In its 2000 Dickerson case, the Court held that its 1966 Miranda decision had so evolved that it was now part-and-parcel of the Fifth Amendment privilege. For 30-plus years before then, the Court had said that its judge-made Miranda rules were merely “prophylactic” — a protection around the Fifth Amendment guarantee against compulsory self-incrimination, but not really part of the Fifth Amendment.

Dickerson changed all that. With Dickerson, the Miranda warnings became part of the core Fifth Amendment guarantee. After Dickerson, the failure to give Miranda warnings is not just a “Miranda violation”; it is a violation of the Fifth Amendment right not to be subjected to coercive interrogation.

Thus, according to the Supreme Court, the failure to “Mirandize” a suspect is inherently coercive. That leads me to believe a majority of the current Supreme Court — and many, if not most, federal judges — would rule that coercive interrogation violates the McCain Amendment, the principal purpose of which was to bar coercive questioning.

To be clear: I’d love to be wrong. For what little it’s worth, I thought Dickerson was wrongly decided. I think the privilege against self-incrimination means a right not to have one’s will overborne. I don’t think the failure to give a suspect Miranda warnings perforce means his will was overborne. Thus, I don’t believe a Miranda violation (i.e., the failure to give all the Miranda warnings) necessarily violates the self-incrimination clause. Nor do I even think all real violations of the self-incrimination clause are necessarily “cruel, unusual [or] inhumane.”

But what I think is irrelevant. What matters is what the Supreme Court thinks. And the Supreme Court is very likely to find that any coercive interrogation is “cruel” “unusual” or “inhumane” — the McCain Amendment terms. Having already found that the failure to provide Miranda warnings is coercive, the Court would almost certainly find that a Miranda violation transgressed the McCain Amendment.

Could I be wrong? Of course. But I could also be right, and if I am it would be impossible to use information from confessions by al Qaeda leaders in the trials against them. Even those of us who argued against the McCain Amendment do not think the senator and his followers intended such a result. What they wanted was a belt added to the suspenders that already forbade torture. The lack of Miranda warnings is plainly not torture.

There’s one easy solution. Senator McCain (or some other member of Congress) could propose a law that clarified the McCain Amendment — explaining that Congress did not intend the McCain amendment to include Miranda protections. That would still leave us arguing over what the McCain Amendment means, but it would be a lot better than worrying about whether, from the moment of capture, we owe every jihadist a publicly funded lawyer who will surely tell him not to answer any questions — or provide us with any intelligence.

 – Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies. 



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