The Corner

Ten Years After

Federal appeals court upholds the convictions of the 1998 embassy bombers.  Ben Weiser of the New York Times files this report

The appeal was delayed for eons due to various complications, including the discovery (well after the seven-month 2001 trial) that, unbeknownst to the prosecutors, the U.S. Marshals made recordings of the prosecutors’ debriefings of the main government informant, an al Qaeda insider who was under government protection — a development that resulted in a spate of litigation after the recordings were provided to the defense.  (Other than that it happened, you didn’t hear much about it because the prosecutors — my friends Pat Fitzgerald and (now Judge) Ken Karas — had conducted themselves exactly as you’d hope government lawyers would conduct themselves.)

I haven’t even seen the 3-judge panel’s unanimous decision yet.  The Times reports that it runs 178 pages.  But in a crucial ruling, the court — with the excellent Judge Jose Cabranes writing — held that the Fourth Amendment is not violated when the government conducts a warrantless search against an American citizen outside the United States and then introduces that evidence at the citizen’s federal criminal trial.  One would have thought that is elementary:  the writ of the United States courts does not run outside the United States, and the touchstone of the Fourth Amendment is reasonableness — searches needn’t necessarily be authorized by a judge to be reasonable.  But it is, in any event, good that the Second Circuit was apparently clear on this point.

The short Times account does not mention the issue I am most interested in:  the Court’s consideration of Nairobi embassy bomber Mohamed Rashed Daoud al-`Owhali’s claim that his confession should have been suppressed because he was not given Miranda warnings when he confessed to American FBI agents while in the custody of Kenya. 

I was part of the team that litigated this issue pretrial.  Had the agents given al-`Owhali the standard Miranda advice of rights, they’d have been lying to him since Kenya did not provide counsel at government expense for all custodial interrogations — and the concept behind Miranda is to give a defendant an accurate understanding of what his rights are.  But after the embassy bombing, the Supreme Court ruled in the unrelated Dickerson case that a confession obtained under custodial interrogation cannot be considered voluntary under the Fifth Amendment unless American police to provide Miranda warnings.  I’m very interested to see how the Court dealt with this:  Did it create a Dickerson exception for interrogations that take place outside the U.S.?  Did it find that because al-`Owhali was a Saudi in the custody of Kenya (whose only connection to the U.S. was to blow up our embassy) that he did not have Fifth Amendment rights?  Did it take a different tack?  It’ll be interesting to see.

Additional breaking good news to follow momentarily.

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