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Should Terror Suspects Be Read Miranda Rights?

Thursday, May 13, 2010

When American citizen Faisal Shahzad was arrested for the attempted car bombing of Times Square this month, some politicians, like Sen. John McCain, said he shouldn’t have been read his Miranda rights. And this week, Attorney General Eric Holder announced he plans to ask Congress to change the rules for giving Miranda warnings to suspected terrorists. Holder hasn’t yet specified what new rules he wants, but legal experts say he’s likely to ask for more time to interrogate terror suspects before Miranda rights are read.

WNYC’s Ailsa Chang has been asking former police officers, counter-terrorism experts, prosecutors, and defense lawyers if changing Miranda rules for terror suspects is a good idea.

So in the law enforcement and legal community, is there a view that terror suspects shouldn’t have the same Miranda rules?

Not really. Among the people I talked to, there’s been some real collective head-scratching as to what the fuss is all about. There seems to be an assumption that once you read someone their Miranda rights –- “you have the right to remain silent, you have the right to a lawyer, etc.” –- they’re going to shut up and not tell authorities anything. But we’ve seen that accused terrorists talk. We’ve seen repeated evidence of this. Faisal Shahzad, most recently, was interrogated for three or four hours before he was read his Miranda rights, and then he waived those rights and is still cooperating. Before that, the Christmas Day bomber, Umar Farouk Abdulmutallab, was read his Miranda rights and temporarily stopped talking, but he started talking again. And the Millennium Bomber who tried to blow up LAX in 1999 was read his Miranda rights and cooperated with investigators afterward.

It almost sounds like a Miranda warning doesn’t make much of a difference –- it doesn’t derail investigations.

That’s exactly it. And the simple reason is people will talk anyway. It’s human nature. According to the lawyers and cops I talked to, the vast majority of defendants who are Mirandized end up still talking to authorities. And there are a lot of theories about why this happens. Professor Ian Weinstein at Fordham Law calls one theory the “Dragnet Effect.”

“The Dragnet Effect is the idea that everybody in America can recite the Miranda warnings because they’ve heard them so many times on TV. And through that repetition, they have become ceremonial,” Weinstein says.

So the idea is people have heard these warnings so many times, they aren’t even listening when they’re read their rights. It goes in one ear and out the other, and so they keeping talk without weighing the risks. Eugene O’Donnell, a former cop and prosecutor who now teaches at John Jay College of Criminal Justice also posed another theory -– one that’s a little more psychological.

“There’s a lot of research on why people talk, but some people obviously talk because there’s contrition, there’s guilt, there’s getting over,” he says.

In other words, people talk to get what they did off their chest, to move on with their lives. And then there’s also the theory that people talk because they think they can outwit the police. There’s a sense that talking will actually save them. Here’s how Nick Casale, a counter-terrorism expert and former detective, put it: “The defendant believes that he is smarter than the detective and is always willing to talk, believing he’s going to influence his train of thought, he’s going to negotiate a better deal.”

But no one is saying terrorists might be different? That they might react differently from other criminal defendants?

To be fair, yes, some people like Professor Weinstein do think terrorists are different -– but not in ways that make a difference when it comes to Miranda warnings.

Weinstein says, in general, from what he’s seen as a former federal defender, accused terrorists tend to fall into two categories: 1) there are some who, by way of their training and indoctrination, are determined never to talk, and that’s not because of a Miranda warning; and 2) some are too anxious too talk, almost too proud to talk, but they’re not motivated by legal risk. They’re motivated by ideology. So a Miranda warning wouldn’t make any difference there either.

Then what is the argument for delaying a reading of Miranda rights to terror suspects?

First, what people are afraid of is a “ticking time bomb” scenario – you have a hypothetical terror suspect in your hands and you want to know immediately, are there simultaneous bombs about to go off right now? Are there co-conspirators ready to act? We need that kind of information right away. And the thought is it’s not even worth the small risk of someone shutting up after they hear a Miranda warning.

But there’s a rule called “the public safety exception” that already encompasses that scenario. This rule allows the government to delay reading someone their Miranda rights if there’s a threat of imminent harm to the public. Then you read the person their rights after the harm dissipates. It was invoked when Shahzad was first arrested and when the Christmas Day bomber was first arrested.

Holder says he wants to use this “public safety exception” with more flexibility when it comes to terror cases, but it’s hard to imagine how to stretch that exception without just totally suspending Miranda rights for quite some time, even after an immediate threat of harm passes. The thought among legal experts is that Holder will want to expand the exception to allow the government to ask a terror suspect questions that don’t directly pertain to an imminent public threat – questions like, “Who trained you?”, “Where were you trained?” and “Who is funding you?” There’s an argument that these are important questions we need answers to, and we shouldn’t take the risk of Mirandizing someone before we hear answers to those questions.

And isn’t the Obama administration under increasing pressure to take a tougher stance on terrorism?

That’s right. Attorney General Holder has been criticized for months as not being tough enough on terrorists. He’s defended the ability of civilian courts to prosecute and sentence terrorists. But when he declared the 9/11 trials were going to be held in New York City, he met public outcry, and since then, we’ve seen him backtrack a little. Now he says he’s considering military tribunals more seriously for the 9/11 defendants. And now he says he wants to change one of the most fundamental constitutional rules in our criminal justice system –- Miranda warnings. Legal experts say it’s like he’s trying to find a middle ground.

The risk, according to some scholars, is that he may be shooting himself in the foot. The point of a Miranda warning is that it better ensures a confession is voluntary and therefore admissible in court. That’s why cops like it. It’s a clear rule that’s easy to follow. The fear among constitutional law scholars is that if you fiddle with the Miranda rule by having Congress pass a new law to change the rule, the Supreme Court may later strike down that new law. And then we would have to throw out any statements made by a terror suspect that we got as a result of the new law. So we’d be back to square one.

Here’s how long-time defense lawyer Steve Hyman put it. He was actually one of lawyers who argued the Supreme Court case which ended up recognizing the “public safety exception” to the Miranda rule. Hyman says you can’t amend a constitutional rule like Miranda. “It can’t be amended by Congress,” he says. “It goes to an interpretation of constitutional right, so that Congress toying with that will only throw these issues into doubt, rather than the clarity which we now have.”

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