Steve Benen and John Cole offer complementary takes on the complaints of John McCain and Peter King that the apparent Times Square “Generation Veal” attempted bomber should not have been informed of his Miranda rights.
Benen’s take is right on the money, and I have little to add:
Najibullah Zazi was Mirandized, and the entire case went beautifully. Umar Farouk Abdulmutallab was Mirandized, and the results have been excellent. When shoe bomber Richard Reid was taken into custody, the Bush/Cheney administration read him his rights five minutes after he was taken off the plane he tried to blow up, and McCain never said a word. It’s been standard practice, especially with American citizens upon their arrest, for years — spanning administrations of both parties.
Can’t McCain just let the grown-ups do what they do without offering suggestions from the peanut gallery? The Joint Terrorism Task Force caught the suspect 48 hours after the attempted bombing; the frequently-confused Arizonan should probably trust them to know how best to proceed.
But Cole’s take on the matter is completely misguided and is emblematic of a particular pet peeve of mine – the failure to understand the nature of Miranda rights. Cole claims that McCain and King’s demand for no Mirandizing of the suspect demonstrates a disregard for the rule of law and a desire for a banana republic. Obviously Cole is being hyperbolic, but the assumption underlying the hyperbole is completely wrong – ie, that there is a constitutional right to be Mirandized.
Miranda v. Arizona is an important case. Moreover, it was rightly decided, or at least decided in the best way that the Court had available to it. But, contrary to the claims of various conservatives who like to throw around the “judicial activism” canard, Miranda did not create any new rights. It did not create a “right to be read your rights.”
Instead, it created a rule of evidence, and a common-sensical rule at that. What Miranda found was simply that one cannot waive their Constitutional criminal procedure rights unless one does so knowingly and willingly. The right to an attorney and the right against self-incrimination exist independently of Miranda. But they apply only to criminal proceedings.
For instance, if one is interrogated without being given a Miranda warning, that fact alone cannot form the basis for a civil rights lawsuit. See, e.g., Chavez v. Martinez, 538 U.S. 760 (2003). The Miranda warning requirement is thus not a right in itself, but is instead merely a “prophylactic measure” intended as a safeguard of the right against self-incrimination and the right to an attorney.
In the case of the attempted Times Square bomber, this simply means that the government would not be permitted to use any evidence obtained as a result of a Miranda-less interrogation in a criminal trial of the bomber. If there is ample evidence to try and convict the defendant in the absence of that interrogation, then there is no Constitutional need to Mirandize him.
The failure to do so is simply not a violation of his Constitutional rights, and his Constitutional rights to an attorney (for purposes of a criminal trial) and against self-incrimination remain intact, as do his rights to due process, a speedy trial, habeas corpus, etc. The government cannot simply lock him up and throw away the key simply because it has deemed it unnecessary to Mirandize him. Nor can it torture him, beat him, or otherwise treat him any differently from your average arrestee. What it can do, however, is attempt to question him for the limited purpose of obtaining intelligence about other suspects, and indeed use evidence it obtains as a result against those other suspects.
Miranda safeguards against law enforcement practices of obtaining an arrestee’s waiver of his Constitutional rights through deception or coercion. It has little-to-no applicability where the government is not attempting to obtain any waiver of those rights at all. In this sense, there is actually nothing inherently objectionable with Congressman King saying “I know he’s an American citizen but still,” because King is expressly referring to the needs of the intelligence community, not the needs of prosecutors.
That’s not to say that the government was wrong to quickly Mirandize the would-be bomber – as I note above, Steve Benen quite succinctly explains why the opposite is true, and the only thing I’d add is that this is quite likely a situation where the government has a particularly strong interest in ensuring that the fruits of its interrogations are admissible in court.
Nor is this to say that McCain’s and King’s views in this subject area are necessarily only ignorant of law enforcement’s thought processes rather than outright malignant. I strongly suspect neither is terribly in favor of actually subjecting terrorism suspects to trial or otherwise permitting them due process protections.
It is, however, to say that opposition to Mirandizing terrorism suspects, even suspects who are American citizens, does not, by itself, demonstrate a disregard for the Constitution.
Meanwhile – and this is my big pet peeve here – promoting Miranda as if it established a cognizable right rather than merely creating a safeguard for the protection of existing rights unnecessarily and inappropriately validates claims that liberal criminal procedure decisions constitute a form of “judicial activism” by creating previously unrecognized rights. Miranda did no such thing and deserves respect precisely because it demonstrates that liberal views on criminal procedure are critical to the protection of long-established rights with a venerable history dating at least to the Bill of Rights.
UPDATE: Despite the above (very limited) defense of McCain and King against John Cole’s accusations (but not Steven Benen’s), everything that Cole said would be 100% on the money if applied to Joe Lieberman’s Constitutionally-offensive proposal, which of course was rapidly applauded by Republican Senator John Cornyn.