Ramesh, I couldn’t agree more.
Another point I have been asked about a few times today bears emphasizing, too — and here, I refer back to the Christmas bomber situation. Miranda and the Fifth Amendment’s self-incrimination clause are strictly about whether confession evidence gets admitted at trial. They do not mean government officials cannot interrogate people in custody without giving them Miranda warnings, and they do not mean that, if government officials do such interrogations, the detainee may not be indicted and tried. They just mean that you can’t use against the person any non-Mirandized statements he gives.
The point is that there are some public interests that are higher than getting a conviction at trial. One such interest is obtaining intelligence to prevent terrorist attacks. In a case such as Abdulmutallab (the Christmas bomber), the case is a slam-dunk without a confession (there having been 300 witnesses to the attempted bombing), so it should be easy to say, “No Miranda, let’s just find out what this guy knows.”
As I argue in today’s column, Shahzad (the Times Square bomber) was not as strong a case at the time of arrest, and it would be nicer to have a confession. Still, it should have been straightforward to say, “The top priority, in a time of war against terrorists, is to obtain any information about ongoing plots and terrorist safe-havens. That clearly outweighs the benefit of getting a confession that would hold up in court and would bolster a case we can probably win without a confession. Therefore, no Miranda – treat him as an enemy combatant for now.” But it’s worth stressing here that all we’re talking about is the use of the statements at trial: Foregoing Miranda does not mean that the captured terrorist cannot be tried in civilian court; it just means you won’t be able to use any confessions. So what? We convicted 12 guys in the Blind Sheikh case with no confessions — it happens all the time.
Which brings me to a final point regarding Attorney General Holder’s congressional testimony today. It’s a point I’ve made before, but if he is going to keep spouting the same nonsense I will have to keep refuting it. The Attorney General insisted today that the Shahzad case shows Miranda does not prevent arrested defendants from talking. This is like saying that because Muggy Bogues had a good career, you really only have to be five-foot-three to play in the NBA. Some short guys can play at that level, most can’t. Some terrorists talk after being Mirandized, most don’t.
Moreover, even if it were true that most talked, it would still not be sensible to make Miranda standard operating procedure in all national security cases. If you are in a situation in which it is more important to get information than to have that information be admissible in a later trial, then it is irresponsible to start out by telling the guy: You don’t have to talk to us; you’d be better off not talking to us because we’ll use your words against you; and if you’d like to consult a lawyer first, we’ll get you one, pay for it, and make sure he’s by your side the whole time. Getting information from a bad guy hinges on making him feel dependent and vulnerable; it doesn’t take a genius to see that empowering him is not the best way to accomplish that.