Citizen or Not, Terror Suspects Are Not Guaranteed Miranda Rights
John Yoo, former Department of Justice attorney in the Bush administration and author of Crisis and Command, pointed out:
[Americans must not] turn terrorism into a criminal problem. They should not see everything as a criminal justice problem but rather as a war.
Frances Townsend, former Bush homeland security adviser, commented regarding those Americans who have attempted or encouraged terrorist acts:
[They] crossed the threshold. It’s tantamount to an act of treason. It changes the gravity of the crime and the dynamics of how they should be treated.
President Obama has authorized American citizen Anwar al-Awlaki to be the focus of a targeted Predator drone killing. This is extremely rare, if not unprecedented — as a U.S. citizen, he has ultimately been given a death sentence without a trial, even one in absentia. However, this is well justified. Al-Awlaki, an extremist Muslim cleric, is widely referred to as inspiring the Fort Hood attacker, the underwear bomber, and the Times Square bomber. America is at war, and some American citizens are aligning themselves with the enemy. Yoo argues that deadly force can and should be used to stop them:
A citizen that joins the enemy does not get a force field around them. There should not be a specific privilege or exemption from the rules of war just because they are citizens.
Both Andrew McCarthy and Michael Hayden argue that the president has constitutional rights as commander in chief to determine that an American can be viewed as an enemy combatant, and what should be done to him. Americans must be willing to allow for constitutional amendments to be limited. They should not think of them as absolute during the war on terror.
National security has to be America’s most important priority. The phrase “the Constitution is not a suicide pact” expresses the belief that during this extraordinary time in America’s history, constitutional restrictions on governmental power must give way to urgent practical needs. Former CIA Director Hayden summarized the need to balance civil liberties with the need to prevent a national security threat:
There is a need to protect life, liberty, and the pursuit of happiness. This calls for very hard choices.
If one sacrifices miranda rights, the terrorists have already won; they will have succeeded in destroying the very democracy which you are trying to preserve. These freedoms and liberties are hard to come by but are easily lost; By removing these rights you are also inadvertently reversing the presumption of innocence where “terror” suspects are to be presumed guilty when apprehended. Once the first domino falls – what’s next? removing miranda rights and habeous corpus for other suspected criminals; before you know it, you will be locked up for peaceful protest or disputed taxes – If you do not think that this is conceivable, just look at recent US and British history – people like Ghandi and MLK were also branded “terrorists” when it suited the governments of the day. Also in the UK, completely innocent people were imprisoned for many years on fabricated evidence like the Guildford 4 and Maguire 7. If this can happen in a democracy when rights are not removed can you imagine what happens when rights are removed? We have a taste of this with the recent revelations from the prisons in Afghanistan,
Give me a bloody break.
Firstly, we have ROUTINELY removed HC and Miranda in times of war when dealing with enemy forces. Because war is not law enforcement, and the military must often deal with situations that cannot be adaquately dealt with within the rules of law. And you already CAN be locked up for not paying taxes and RIGHTFULLY SO. This is not an anarchy, because anarchy does not work. If you want to live here, you play by the rules. You don’t, go elsewhere.
Secondly, MLK and Gandhi were never branded as terrorists. Gandhi was branded an inciter and locked up for sabotaging the war effort and because of the violent thugs that operated in the shadows of his “peaceful” movement, and MLK was arrested on largely tumped up charges by the extremely biased Southern police organizations. This is not comparable to what we are talking about.
Like it or not, but war often requires the temporary cession of civil liberties, but as long as there are safties in place to protect their reinstation afterwards, there is little to worry about.
Are these choices really even all that ‘hard’? The point about Miranda’s actual purpose — enabling defendants to avoid self-incrimination during trials — is obvious and yet almost never mentioned.
I disagree whole-heartedly. In every single application the Constitution is a social compact founded in standard, not circumstance.
We have to, at all times and at all costs, adhere to the standards contained within its text. We can not allow circumstances to permit deviation from its providence. If our society agrees that there is a change that must be made, then there is a system, described in detail within its very text, to accomplish this.
If we agree, by requisite majority, that an American Citizen who has committed a crime on American soil and on behalf of another nation or entity which is foreign to the U.S. should not be afforded the Miranda Rights, then we can amend the Constitution to say so. But until such time as we do, we have no choice but to apply the law as written.
The essential goal of terrorism is to diminish our freedom. Freedom is our strength and the ultimate obstacle for their purposes. Killing 3 or 4 thousand in a country of 300 million barely represents any physical damage, but if our reaction is to give away some freedom then they have won a big prize.
So, how can we fight this enemy without giving away freedom? The answer is to establish a clear definition of our purposes and to form a robust organization to achieve the results we need. “War on Terror” is a hollow term that sounds strong but actually means nothing because it doesn’t identify anything concrete. We didn’t declare war on “Air Raids” back in 1941, Britain didn’t declare war on “Blitzkrieg.”
Identify the enemy by name; for example, we could officially declare war on any person, organization or country involved in islamic jihad. Any such person or organization could be considered spies and treated as such whether they are foreign or domestic. Any person arrested under suspicion of such would be automatically outside the jurisdiction of the Justice Dept. and could then be referred to the military or intelligence agencies. This is the right way to do things.
The most important thing is: never surrender a bit of your freedom. Never allow the government to have the power to detain and question without Due Process unless there is a clear definition of the enemy and an official declaration of war against it. And never allow the Justice Dept. to have a right to decide when they should respect Due Process and when not; the job of the Justice Dept. is to ALWAYS respect Due Process, and in case of war to refer suspects to the proper agencies.
Remember that any power given to the government will eventually end up being used for unintended purposes.
To all you bleeding hearts-harry, Kenservative-why are you so hell bent on assuring the rights of people who would kill you? If that doesn’t fit the definition of insanity then it is suicide by obsequiousness to ideology.
First, we are talking about gathering intelligence about possible future attacks on Americans. We are not suspending, indefinately, habius corpus or Miranda, just acquiring intelligence in the case of an American citizen who wishes Americans harm.
Second, it is only you libs who think that this war is a legal/criminal action and should be fought in court. If that were true, how come you two, the ACLU and other progressive lawyers are not suing Saudi Arabia and Islamist groups for damages for the 3000 Americans who died on 9/11?
Lastly, if you two really do believe in the strict reading of the Constitution then you would also argue that Roe should be revisited, that Griggs and affirmative action should be over turned, “the separation of church and state” should be looked at again and that a whole slew of liberal judicial activism should be at least revisited and overturned because they are not anywhere to be found in either the Constitution or the Bill of Rights and as Ken said, “We have to, at all times and at all costs, adhere to the standards contained within its text. We can not allow circumstances to permit deviation from its providence.” Or is it only those things that support your causes and ideology that are sacrosanct.
The Miranda Warning is not a constitutional right but was instituted as a result of a U.S. Supreme Court court decision in 1966. There is an exception granted to the Miranda Warning known as the “public safety” exception in which the “rule of Miranda must yield in a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. The rule of Miranda is not, therefore, absolute and can be a bit more elastic in cases of public safety.” Congress should immediately pass a law to codify the public safety exception that takes into account the jihadist war that did not exist when that exception was narrowly drawn by the Supreme Court in the 1984 Quarles case. As Charles Krauthammer states “Otherwise, we will be left — when a terrorist shuts up as did the underwear bomber for five weeks — in the absurd position of capturing enemy combatants and then prohibiting ourselves from obtaining the information they have, and we need, to protect innocent lives.”
It is true that Miranda is not required for terrorist suspects, but this would only apply when the government declares Marshall law and suspends all civil rights for all citizens.
The entire problem with saying that the government can do anything it wants to with a terrorist, such as deny them the rights the constitution protects citizens from being denied is that who decides who is a terrorist and who is not a terrorist? Is the Republican voter who posts a sign along the side of the highway asking if the government is doing its job correctly going to be a target for these less than American rights? How about Tea Party protesters? We have heard many government employees calling for Nuremberg trials for global warming “deniers”, so would anyone who challenges cap and trade be a terrorist to this government? If the government can treat these people as terrorists, should terrorists have access to habeas corpus and do other Americans have any right to know who has been swept under the carpet by these less than constitutional methods?
American citizens have these rights and are protected from having these rights taken away by the constitution, so until the constitution no longer is in effect, Americans retain the right to council, a speedy trial, to face accusers and every other right the constitution prevents the government from taking away. I will say that even those who are invited to this country by our government through the use of the VISA and greencard should also retain all rights and privileges, although they can be stripped of those after a quick and speedy trial to have their VISA or greencard revoked if they obtained it through less than honest ways. American citizens cannot be stripped of citizenship unless they can be proven to have sworn allegiance to another power and forsworn their citizenship in the process.
And what happens when Obama decides that in order to combat “right wing extremists” who do things like talk about their Constitutional rights, oppose mandatory health insurance and higher taxes, and generally just oppose his policies, he has to suspend all Constitutional protections against self incrimination, unreasonable searches, speedy trials, and so forth?
Of course that could “never” happen, like it did under Woodrow Wilson and his Sedition Act.
Okay, it could “never” happen again, like it did under Franklin Roosevelt and the Alien Registration Act, which was okay because it was only used against Trotskyists, Stalinists, and National Socialists.
Okay, okay, it could “never” a third time and be used against people who oppose a “Progressive” administration, and the war they are prosecuting, even though that is identical to the circumstances under Wilson.
And people accuse Marxists of believing in ridiculous utopian fantasies.
You forgot the word “Rights” in the headline. It should read: “Citizen or Not, Terror Suspects Are Not Guaranteed Miranda Rights”.
You guys are missing the point. Miranda requires that you be given your rights before any information that you give can be used against you in a court of law. The author is suggesting that the information that may be gleaned to prevent further attack won’t be used in a trial. The need to prevent additional attack takes precedent over the need to convict on information obtained while questioning prior to being given Miranda.
In most cases, the investigating authorities should be able to generate enough information outside of suspect questioning in order to get a conviction.
I am a liberal…. but this time I have to agree that Miranda does not apply to them… otherwise they will kill us all, liberals, and republicans.. they don’t give a sh……
but the evidend they privide should only be used for our safety and not for their prosecution…
jreb, thank you for that perfect response. Krauthammer is well worthy of being quoted in this context (or for that matter any other!).
I’m still waiting to hear from the ‘legal and security experts’ promised in the subhead.
“We had to destroy your liberties in order to protect them.”
Plus ca change…
unless the terrorist is arrested on American soil by standard law enforcement, they are under NO obligation to be read miranda rights.
Those of you arguing that we are “sacrificing liberties for securities” are naive; such dribble can be used as an argument against ANY AND ALL laws – Jreb has revealed such a mindset to us all: in his mind, 3,000 or 4,000 dead people don’t really matter to him…it wasn’t his life at stake, after all, so it doesn’t matter.
Please consider purchasing a vacation home in Somalia; they don’t have laws over there – you’ll be in heaven.
I do care about the people murdered on 9/11 by Islamic terrorists, IMHO any terrorist apprehended inside or outside the US should be treated as an enemy combatant and should not be granted any US rights. However for anyone that thinks a Miranda Warning is required because the terrorist was captured on US soil, the exception to the Miranda Warning is the “public safety” exception which the law enforcement community (specifically the FBI and Attorney General) seemed to be reluctant to exercise. To prod the law enforcement community into using the existing “public safety” exception, I was only suggesting that the Congress should step up to the plate and codify into law the “public safety” exception.