Some Rules Don’t Have Exceptions

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

Related Post Roulette

154 Responses

  1. Lyle says:

    Given that he was a naturalized citizen, and the courses for that cover rights, I wonder if he knew about the rights before hand. (Also he went to high school in the US and one can be sure the rules are discussed there).Report

  2. Scott Fields says:

    Mark –

    Thanks for the legal assessment, but the approach the government is taking hear would be correct even without the legal requirements.

    The single most useful action our country could take in response to the Boston bombing would be to treat Tsarnaev as a run of the mill criminal – with all the rights that affords. His prosecution should be as mundane as possible.

    Terrorism that fails to terrify weakens terrorism as a tactic.Report

  3. Kazzy says:

    I’m a bit dubious of the claim that they were getting “valuable information” out of him.

    Here is a 19-year-old kid, who likely had some delusions of grandeur that were then put on steroids as he watched the news media and various law enforcement agencies go absolutely ape shit over his actions, who was in a hospital bed, likely in pain, possibly medicated (perhaps heavily)… is that really the world’s most reliable witness?Report

    • Mike Schilling in reply to Kazzy says:

      He’s probably the only one left who cal tell us whether his brother was part of a cell or just a lone wacko.,Report

      • LWA in reply to Mike Schilling says:

        But as with any testimony gleaned from interrogation, the devil is in knowing whether it is reliable or not.

        If he says, “Yes, my super secret sleeper cell comrade is named Mike Schilling”, what do we do with that “intel” Is it “Actionable Intel”?

        And after a few hours of waterboarding, when Mike Schilling burbles out, “My secret contact terror master is code named ‘LWA’ and posts comments on political blogs”, what then?

        Thats what always amazes me about the torture enthusiasts- they somehow assume that interrogators “know” with certainty that a ticking bomb exists, and that they “know” that the suspect “knows” where it is.

        But even a cursory glance though actual history of spycraft and police work shows that we never really “know” anything with certainty, and witness testimony is the most unreliable of all sources of information. I don’t think the MIranda warning changes anything about this, actually.Report

        • Chris in reply to LWA says:

          Mike, I think you may have missed Mike’s joke.Report

          • Chris in reply to Chris says:

            Oops, the first Mike was unintentionalReport

          • Mike Schilling in reply to Chris says:

            I know it’s the the default assumption, but I was serious, There’s stuff we’d like to know about the dead guy’s associates and contacts, and his brother is the only remaining source. He might clam up or lie, but it’s still worth asking. And if he does lie, the worst that happens is that some false leads get chased down until it becomes clear he was lying.

            I’m not saying torture him. I’m saying interrogate him, being well aware that he might be lying, but using the standard tricks:

            * Ask him the same thing in different ways, to see whether the answers are consistent
            * Ask him questions you know the answers to, to see if he lies
            * Ask him things you know he doesn’t know, to see if he makes stuff up, and if so what he sounds like when he’s making stuff up

            This doesn’t have to be coercive or “enhanced” — it’s what skilled interrogators are trained to do, staying completely within ethical bounds.

            The trade-offs here aren’t slam-dunk. Mirandizing him may well result in less information, which might endanger lives. I’m far more impressed with the argument that Miranda’s required anyway than a dismissal of its costs.Report

      • Mad Rocket Scientist in reply to Mike Schilling says:

        I think this StratFor article makes a solid case for grassroots independent operators.

        Now if we can just get Lautenberg to stop trying to require a license to practice chemistry…


  4. John Howard Griffin says:

    When I read about people being outraged that he was Mirandized, I had some of the same thoughts, Mr. Thompson (tho IANAL).

    Being read your Miranda rights doesn’t grant those rights, because you already have the rights. The Miranda warning is just reminding you of those rights in a formal fashion.

    I keep thinking that what these people are outraged about isn’t the Miranda warning. They are outraged that he has any rights at all.Report

    • I was going to leave a comment, but Mr. Griffin beat me to the point I was going to make, and was more succinct about it than I would likely have been.Report

      • John Howard Griffin in reply to Burt Likko says:

        Well, I’d still like to hear what you have to say on the matter, Mr. Likko.


        And, here’s an off-post-legal-topic I’d be interested in discussing with you, Mr. Likko and Mr. Thompson (that I’ve been thinking about for some time):

        What problems occur because we have a Capitalistic form of legal representation?

        I don’t want to side-track Mr. Thompson’s post, just plant a little seed for a future post, perhaps. Or, maybe just an email exchange would be interesting. I’d be interested, anyway.Report

        • What problems occur because we have a Capitalistic form of legal representation?

          If I can jump in with what I see as a problem it’s that if someone is a prosecutor for 20 years, the assumption is that they are a pretty good/successful prosecutor. If someone is a public defender for 20 years, we can assume that they aren’t a very good defense attorney.Report

          • John Howard Griffin in reply to Jaybird says:

            That’s interesting, Jaybird.

            Are the assumptions correct (verifiable)? Only in some cases?

            If they aren’t, is it due to societal biases?


            The big question that’s been on my mind (among many) is: doesn’t money (being able to afford a better lawyer) give an advantage in our legal system to those with more money? There is a tried-and-true method (which probably has some label that I don’t know) of a rich person or corporation outlasting the other side because they can keep the trial going for a long time, and when the costs become prohibitive, the other side gives up.

            How can we trust in our laws when money can make things so uneven. It’s like the side with money gets old Lady Justice to lift just their side of the blindfold, if you will.Report

            • Mad Rocket Scientist in reply to John Howard Griffin says:

              If I were king for a day, one of the changes I would make would be to require that whatever amount of money a municipality/district/etc budgets to the DA must be matched to the public defenders office.

              So if city A spends $500M a year to fund the DAs office, the public defenders office gets $500M a year as well.

              Don’t have $1B to spend – then I guess the DA had best be exercising some prosecutorial discretion in the cases it tries.Report

              • greginak in reply to Mad Rocket Scientist says:

                Agreed on matching funding. Also increase the number of judges so more cases can be brought to trial. Crime labs should be independent of law enforcement and prosecutors. At the least they should be co-supervised by police/DA and public defenders.Report

              • Kimmi in reply to greginak says:

                Perhaps this would work better if you said “increase criminal judges”… because civil judges being overstressed is a key part of getting everyone to be succinct and timely.Report

              • Why not take it a step further?

                Combine the Defenders’ and Prosecutors’ offices. A government criminal lawyer might find themselves on either side of the line in any given case.Report

              • Mark Thompson in reply to James K says:

                Realistically, this would male the problems significantly worse- the result of such a system would be to create a huge incentive for attorneys to take a dive whenever they drew the defense side of a case since they will always have to have longterm relationships with law enforcement – ie, prosecutorial interests- but will very rarely need to worry about developing long term relationships with any given person or institution on the defense side. That’s before you get into the conflict of interest problems, which are even bigger.Report

              • Mad Rocket Scientist in reply to James K says:

                I thought about this as well, but the adversarial nature of the system would be subverted if we did that.Report

            • Dave in reply to John Howard Griffin says:

              How can we trust in our laws when money can make things so uneven. It’s like the side with money gets old Lady Justice to lift just their side of the blindfold, if you will.

              Another problem is that sometimes the penalties are not adequate to serve the purpose as a deterrent. Do you think WalMart gets hurt when it has to write a check to settle an alleged violation of labor law? They can do that kind of thing all day if it wanted to. That’s a whole other can of worms though.Report

            • Scott Fields in reply to John Howard Griffin says:

              How can we trust in our laws when money can make things so uneven?

              JGH – I’d say this statement applies well beyond legal representation. It’s the crux of our entire system.Report

            • This is a very real problem that the profession’s been struggling with for a long time. Part of the issue is obviously the American system that generally requires each side pay for its own attorneys, win or lose. On the other hand, I’m not at all convinced that the alternative – prevailing party pays both sides’ fees – is much better, since it makes individual plaintiffs’ litigation even riskier for the plaintiff. One way that there have been attempts to address the issue is to allow for fee-shifting for prevailing plaintiffs (and only prevailing plaintiffs) in certain types of claims where the individual plaintiffs are at a particularly strong disadvantage, but this only goes so far. On the other hand, for contractual claims, it’s fairly common for the parties to contract around this American Rule, but as a practical matter, this usually benefits the party with the deeper pockets since we’re so often talking about cases where the contractual breach is nonpayment of a debt.

              In the criminal context, the problems are, if anything, even trickier, despite the fact that the criminal context is less capitalistic. That’s because the state has almost unlimited resources, and the defendant has the bare minimum, while interests at stake are far bigger than in a civil matter. Public defenders and mandatory pro bono work (which we have in NJ) help, but not nearly enough to make more than a dent in the power imbalance.

              Hmmmm….but you’ve got me thinking. This has terribly little chance of ever happening, but altering the American Rule in the criminal context could be an almost unqualified good; in effect, the rule could be altered so that defendants who obtain acquittals on even one charge would be entitled to attorneys’ fees (at a means-tested but universal rate) for work expended on defending against the acquitted charges. This would create a huge disincentive for prosecutors to overcharge, and would incentivize PDs and pro-bono attorneys to be more zealous in their representation of a given client; most importantly, it would encourage more attorneys to get into the business of representing indigent defendants.

              The one major downside to this is that it would also discourage attorneys from advising clients to take plea bargains in the majority of cases where the client actually is guilty or unlikely to mount a successful defense.Report

              • John Howard Griffin in reply to Mark Thompson says:

                I keep trying to picture some sci-fi story of some strange new legal system of the future, that actually is capable of being better than what we have.

                The only thing I’ve come up with is that your representation is determined randomly. You might get the best lawyer in the world, or the worst public defender in history. It would certainly change the legal system and the laws. I’m really just trying to find a way where the laws are applied equally. More equally than they are now.Report

              • Kazzy in reply to John Howard Griffin says:

                “…and the laws.”

                This is an oft-ignored point, and I really appreciate when you bring it up, JHG.

                If powerful people were subject to the same laws as the rest of us, the laws would change. No doubt.Report

              • Kimmi in reply to John Howard Griffin says:

                Okay, we run this like we run housing assessments. You pay a flat fee (per type of rep, obviously). Select name out of a hat.

                At least then you’re getting mostly fair and equal skill levels.Report

            • Wardsmith in reply to John Howard Griffin says:

              The 100% worst offender here isn’t Joe Rich Guy. It is Uncle Sam. Spitzer used the state’s essentially unlimited powers to attack relatively innocent corporations (80% of whom were 100% exonerated once it actually got to, you know, court) . Meanwhile he virtually caused the meltdown by removing AIG’s boss who NEVER would have backed the securities that his replacement did.

              On the Federal level, read a book called, “My Country Versus Me” sometime. Or look at Senator Stevens’ case. Judges complaining after the fact that prosecutors overreached doesn’t help corporations like Arthur Andersen (not quite exonerated, but too late regardless).

              No matter how much wealth you have, you’ll run out of money fighting Leviathan.Report

              • Kimmi in reply to Wardsmith says:

                Who ran out of money first, wardsmith?
                Way I hear tell, Spitzer took a dive.Report

              • Wardsmith in reply to Kimmi says:

                Spitzer had nothing. He bullied corporations into settling to avoid litigation. Those who fought him all won, some won 100% some won partial victories. He bullied AIG into firing Hank and there is a very clear line of dots between that event and the eventual meltdown of the financial system. If I ever get around to it I’ll resurrect my files and write up an OP explaining all the steps.Report

            • Are the assumptions correct (verifiable)?

              Here are my intuitions. Let me know if they make sense or not.

              A prosecutor’s success is measured in a couple of ways:
              1. Plea Bargains Reached.
              2. Prosecutions Achieved.

              The prosecutions achieved are going to be measured against:
              1. Public Defenders
              2. Private Practitioners

              So a really, really good DA would be one who “puts a lot of criminals away”. (Or, I suppose, “makes a lot of criminals pay a fine and/or work Saturdays at the Goodwill.”)

              So, these victories are pretty much zero-sum. (There is *SOME* chance for dual victories for defense lawyers able to turn a likely conviction into a plea bargain.)

              Given my assumption, given below, that a really successful public defender is pretty much likely to become a member/partner of a private practice (and, yes, make more money), then the place where successful prosecutors have to make the most success are among the public defenders who are not tempted away to private practices… and that leaves either the True Believers or those who aren’t likely to be asked to go to a private defense firm.

              As such, it seems to me that the majority of any given “successful” Prosecutor will be at the expense of Public Defenders… and someone who is a Public Defender for 20 years is either a True Believer or someone who has never been offered a job to make more money somewhere else.

              Below, you’ll see that Burt sees the latter as likely to wash out. He’s actually a lawyer rather than a guy who sits in a chair and theorizes about junk. So you should probably listen to him, at the end of the day.

              But those are my intuitions anyway.Report

              • John Howard Griffin in reply to Jaybird says:

                Are successful prosecutors not likely to become a member/partner of a private practice? Are they not likely to pursue money in other ways (e.g. politics)?

                I think that prosecutors would be just as likely to be hired away or to pursue money in other ways, except for prosecutors that are True Believers.

                So, wouldn’t this mean that a prosecutor who has been there for 20 years is also either a True Believer or someone who isn’t likely to be asked to go to a private firm (or into politics)?Report

              • I hear commercials in town for DUI lawyers who talk about being former prosecutors, from time to time. I’ve no doubt that he’s a pretty successful DUI lawyer. He can still afford commercials, after all.Report

              • Jaybird in reply to Jaybird says:

                And I happened to stumble across another handful of assumptions, including a funny assumption for a libertarian to have: the grand jury system probably works really well. My assumption is that, most likely, the people who are arrested and make it past a grand jury are, most likely, people who did the stuff they were arrested for.

                The argument, to my mind, tends to go straight to “should such-and-such be illegal in the first place”? I mean, if someone gets to trial for possession of 2 pounds of weed, my assumption goes as follows:
                1. they had at least two pounds of weed
                2. they were going to distribute at least some of that weed

                We’re not talking about whether the guy is innocent, anymore. We’re talking about whether what he did should be illegal in the first place.

                There are, of course, pathologies created all over from the war on drugs, from the turf wars, to the alcohol-related violence that wouldn’t likely have happened with other substances, to the pathologies of meth (or other drugs) that likely wouldn’t exist if marijuana were legal, and on and on and on. Pathologies that wouldn’t exist with smarter drug policy.

                So when I hear that someone was arrested and went to trial, my general assumption is that there was enough to make it past a grand jury, and there was enough to make it past a grand jury because the folks arrested actually did it.

                And, here’s another assumption, the glut of criminal trials in the US are for low-level crimes that aren’t particularly interesting, lurid, or newsworthy. DUIs, domestic violence, drug busts, robbery… and most of the people busted for these crimes did, in fact, do them.

                Which leads prosecutors to say “I’m putting away people who broke the law” and helps them sleep at night after they win a case and helps make most of the public defenders not feel quite so bad about losing a case.

                Sure, everybody is entitled to a vigorous defense on their behalf… but if you’re the public defender for a guy who was arrested for beating up his mom after she hid his car keys because he was drunk? Are you going to lose sleep if you don’t throw your back into it? (Note: a co-worker was on a jury where he found someone accused of the above to be guilty. He was depressed about it for a month.)

                Now, of course, this probably betrays that I live on this side of the tracks rather than that side of them… but I’m sure that those assumptions about those arrested for whatever crime color my assumptions about prosecutors and public defenders as well.Report

              • I’m given to understand that prosecutors are typically paid significantly more than public defenders. Not necessarily enough to become wealthy, but most assuredly enough to live a comfortable upper-middle-class lifestyle with excellent benefits and an ability to obtain a sizable amount of political power.Report

          • Burt Likko in reply to Jaybird says:

            If someone is a public defender for 20 years, we can assume that they aren’t a very good defense attorney.

            I know you’re far too savvy to actually believe this, Jay, but I’ll make it [the falsity of the assumption which you attribute to others] explicit. If someone is a public defender for 20 years, we can assume that he or she is a very good defense attorney. Someone who wasn’t very good at such a job would get washed out before 20 years had passed. YMMV, but the presumption should be that a public defender with that much experience is very competent indeed.Report

          • Kimmi in reply to Jaybird says:

            Or, you could put it like this. If a prosecutor is 20 years in the field, and isn’t dead yet, he knows what bodies to keep buried.Report

        • Kazzy in reply to John Howard Griffin says:

          I’ve thought about this myself and co-sign on to JHG’s question.Report

        • Well, I’d still like to hear what you have to say on the matter, Mr. Likko.

          I’m flattered! Miranda is, by itself, a procedural safeguard which has become integrally incorporated into criminal procedure. Its contours have been reasonable well-navigated and two generations after the case, law enforcement nationwide now knows with reasonable accuracy when it must and must not Mirandize an arrestee. The rights are not conveyed by the ceremony of reminding the arrestee of the rights; they were there all along, as recognized by the Fifth Amendment.

          My colleague Mr. Thompson is quite correct to point out that the contention that Mr. Tsarnaev was not arrested is risible. Whether he was effectively questioned prior to the magistrate’s unusual action of going to his bedside to conduct the initial hearing is doubtful, given his medical condition. But let’s assume that somehow he did communicate that information to law enforcement prior to either being formally advised of his rights or having assistance of counsel.

          In such a situation, on one level, Prof. Orin Kerr’s analysis is correct — the police can ask all the questions they want without Mirandizing an arrestee as long as they are confident they already have all the evidence they’re ever going to need to secure a conviction of that defendant.

          On another level, I’m not sure that’s right, for two reasons. The first is the “fruit of the poisoned tree” doctrine. Not only is information and evidence obtained as a direct result of a Constitutional violation excluded from court, so is information necessarily derived from that improperly-obtained information. So let’s assume not only that Mr. Tsarnaev responded to pre-Miranda questioning but also assume that he and his late brother had an accomplice whom I’ll name “Omar” for discussion purposes. Omar is still at large and there is no evidence against him yet. If the information gained from Tsarnaev implicates Omar, and the information gained from Tsarnaev was obtained in violation of Tsarnaev’s Fifth Amendment rights, is that “fruit of the poisoned tree” in the criminal prosecution against Omar? I don’t know the answer to that, because I don’t practice criminal law, but as I’ll explicate in the next paragraph, my understanding of the theory underlying the Constitution indicates that admissibility of Tsarnaev’s statements implicating Omar is somewhere between “questionable” and “doubtful.”

          The second issue I have with Prof. Kerr’s dismissal of Miranda‘s importance in a situation like this is somewhat more numinous. My vision of what “rights” are is a matter of some theoretical dispute on these pages. I see “rights” of individuals as coextensive with the limits on the power of the government (when properly exercised). One articulation of the right at issue here is the right to not cooperate with or otherwise assist in the government securing your own conviction. So I see the right against self-incrimination as inherently related to the right against unreasonable searches and seizures, which means that we’re talking about the Fourth Amendment too. Some people don’t think police questioning is the same thing as a “search and seizure” but in my vision of things, it all has to do with how the government (law enforcement and prosecution and the courts) get information and there are limits on its power to do so. Those limits are your rights.

          If Tsarnaev’s rights were violated, then the government has exceeded its power. This is an inherent problem for me, even though I have no love for Mr. Tsarnaev (or Omar, his theoretical accomplice).

          What problems occur because we have a Capitalistic form of legal representation?

          Enough that I think the question merits its own post and I thank you for the inspiration. For now, the very short-form answer is, “Dude. Lots of problems occur for this reason, but I doubt that I can think of an alternative paradigm that on balance wouldn’t be even worse than the status quo.”Report

          • John Howard Griffin in reply to Burt Likko says:

            Thanks, Mr. Likko.

            I look forward to reading your post and annoying you with too many questions.Report

          • Michael Drew in reply to Burt Likko says:

            My understanding from reading over the last week is that the only evidence barred is the actual statements of the arrested person at his own trial. Certainly I remember reading that physical evidence obtained via pre-warning questioning is admissible; I can’t say I read about testimony from persons whose involvement/witness status was brought to light through pre-warning questioning, but my impression was that generally fruit-of-the-poisoned tree doesn’t fall under the Miranda exclusion – just the statements themselves. IIRC, this was from a relatively recent (i.e. post-2000) decision of the Court.Report

    • Mike Schilling in reply to John Howard Griffin says:

      Sure. The issue here is how likely you are to get answers if you begin with

      “We have a few questions.”


      “You have the right to remain silent. Anything you say can and will be used against you. Oh, and, by the way, we have a few questions.”Report

      • Well, there’s being clumsy about it and then there’s something like:

        You know your rights. You’ve watched TV. You know you don’t have to talk to me and you’re entitled to a lawyer. If you want to invoke those rights, we’ll stop right now. Right now, you don’t have to answer any questions at all. I just want you to listen to me and say nothing. Okay?

        That, by the way, is a proper Miranda instruction. The seduction goes on:

        Here’s what I know already. I know X. I know Y. I know Z. I’ve got evidence to prove all of those things already.

        That last sentence does not have to be true. It can, in fact, be an outright lie, which is entirely proper and Constitutionally valid.

        Now, look right here. You see here on my form? [Turns form around.] I can check this box that says “Suspect cooperated with investigation.” A checkmark in that box makes a big difference when it comes to charging, and sentencing. So here. I’m going to get a cup of coffee. No, no, don’t say anything. Just think about it for a minute. If you want to waive your rights and talk when I get back, then we’ll talk, and I’ll check the box. Hang tight, I’ll be right back.

        Of course, we know that on Law & Order when the detectives say, “Timmy, we already know everything that happened, we just need your side of the story,” and Timmy actually gives them his side of the story it never, ever works out good for Timmy. But even a basic seduction like this one can get nine out of ten arrestees to voluntarily and knowingly waive their Miranda rights.Report

    • rexknobus in reply to John Howard Griffin says:

      It’s the wide-eyed innocent in me, but I’ve always liked to think that to some small extent reading a suspect their Miranda rights serves also as a reminder to the police. ” (I need to remember that) you have the right to remain silent.” “(I need to remember that) you have the right to an attorney.” Etc.Report

  5. Mopey Duns says:

    It is truly bizarre to me that America has gotten to the point where the basic elements of due process are somehow controversial.

    It makes me wish you could force people to think critically about why, constitutionally, one might want to afford such rights to everyone, including ‘obvious bad guys’.

    But, horses, water, drinking, etc.Report

    • Mad Rocket Scientist in reply to Mopey Duns says:

      This is the same country where people are perfectly fine “being rescued at the point of gun” from something that is not currently threatening them.Report

    • Will H. in reply to Mopey Duns says:

      Basic due process has always been a contentious issue.
      Constitutional law is always evolving.
      Most people (self included) tend to think that much more is covered by the Bill of Rights than actually is.
      Seriously, do you have any idea what manner of artwork is covered by the First Amendment?
      Here’s an appellate court from 2009 stating that the district court erred in citing a 1996 decision from the Second Circuit that only ” ‘paintings, photographs, prints, and sculptures’ —were presumptively ‘expressive’ and so within the protection of the First Amendment.”
      And the appellate court in February of 2012 affirming an award for nominal damages (which means a $1 award). And the reason why is that the right to create and sell art was not “sufficiently established” at the time of the incident (the 2002 Winter Olympics).
      There was, however, an award of attorney fees for the plaintiff (who was represented by the ACLU by then) for over $450,000.
      But right now, it may or may not be “sufficiently established” that anyone has the right to create and sell art other than the four types of works enumerated above.

      With that in mind, it’s nothing short of incredible the pushback from some quarters for the acceptable bare minimum of protections.

      I went to this chemical seminar years ago, and there was a guy talking about water treatment. I’ve been pretty freaked out about drinking water ever since. Most of the guys in that trade have two types of systems running into their homes (and one is almost always an RO system).
      But once you find out what all those chemicals are in your water, and what a gawdawful amount they’re saying it’s ok to leave in there, it’s nothing short of amazing that such stupidity could exist whenever you hear people complaining about how they want to permit more chemicals into our drinking water.
      (Note: One thing I’ve been advocating for years is a brown water system in the US, and it looks like we’ve certainly got it, though no one has yet officially come out and called it brown water, because they’re too stuck on telling us it’s safe to drink.)
      (Supplemental: Might not be the most coherent comment I’ve ever written, but it sure felt good to get that off my chest.)Report

      • Kimmi in reply to Will H. says:

        I’ve got a decent system for water purification at home. It’s a pressurized carbon filter system (Brita on ‘roids), and it works pretty decent. I can find the name if you’re interested.

        Ton’s cheaper than RO.Report

        • Will H. in reply to Kimmi says:

          Back to the due process thing, there are a number of areas where there are significant circuit splits:
          Agency in establishing minimum contacts for purposes of the Fourteenth;
          When the Fifth or Fourteenth is applicable (oddly enough, a matter of state law in many cases);
          Accrual of extortion offenses.

          Where these things tend to really come out is with alien parties and multi-district litigation; class action & anti-trust.
          But it’s far from settled.Report

  6. Jaybird says:

    Would the AUMF allow us to detain him as an enemy combatant?Report

    • Mark Thompson in reply to Jaybird says:

      I’ve yet to see an argument which even passes the laugh test that there is now, or ever has been, a set of laws or rules that would allow an American citizen to be detained on American soil as an enemy combatant based solely on acts occuring on American soil without any evidence of direct coordination with al-Qaeda or the Taliban. Even the AUMF, as I recall, required “direct” support of al-Qaeda or the Taliban.Report

      • Jaybird in reply to Mark Thompson says:

        Guys in suits show up. Say they’re “detaining” him. We ask for proof saying that we require direct support of AQ/T. They say “our evidence is classified”.

        Hell, let’s have them add “but it points to a dirty bomb in the making somewhere…”

        Laugh test?Report

        • trizzlor in reply to Jaybird says:

          Dirty bomb or not, he still gets to contest the combatant label in court.Report

          • Jaybird in reply to trizzlor says:

            I hope you guys are right.

            I fear you guys are wrong.Report

            • Dave in reply to Jaybird says:


              It won’t fly in the courts. In fact, it didn’t fly in the courts.


              • Jaybird in reply to Dave says:

                Huh. Awesome.

                What’s infuriating about that is that the guy pled guilty… which makes half of me say “they *COULD* have tried him the first time!!!” and the other half say “what did they threaten him with?”

                Doing things according to the book protects sooooo much more than the rights of the accused. The fact that The Authorities don’t see that should freak us out.Report

              • Patrick in reply to Jaybird says:

                It is in the nature of the Authorities to assume that they are Duly Authorized.

                This generalizes outside of the legal authorities. Everybody assumes this. I don’t need to deal with all this paperwork, I would never bogart the PTA funds. I don’t need an inspector to clear my wiring, who would rig their own house in a way it would burn down? Etc.Report

        • Mark Thompson in reply to Jaybird says:

          Laugh test? No. On the other hand, proving that the non-existent evidence in fact does not exist would be just about impossible. Which, of course, just demonstrates how scary the notion that “the battlefield includes the homeland” really is.Report

          • Jaybird in reply to Mark Thompson says:

            My position, as I love to point out, is that it’s time for us to repeal the AUMF. Or sunset it. Or whatever the phrasing would need to be for us to “Declare Victory And Go Home”.

            I suspect that this bombing will be Exhibit A for why we can’t do that just yet.Report

          • Qub in reply to Mark Thompson says:

            “We’re invoking the state secrets privilege. We’ll determine what evidence the judge can see, and he’ll need to take our word on the rest.”Report

        • Michael Drew in reply to Jaybird says:

          I would just point out that you’re never going to be able to get rid of the possibility that Guys In Suits (And Guns Holstered Under Their Suitjackets) might show up and claim that some law allows them to detain someone – or, not even bother with such claims.

          The laugh test is not – cannot be – an actual bar to this. Judges don’t have guns, and the Guys In Suits will always be able to call in enough other Guys In Gear to take out the judges’ bailiffs if the judges try to enforce their own orders. But the laugh test is about the next best thing we’ve got to preventing these actions. That’s partly because of the prospect that the public might respond to actions whose legal justifications don’t pass the laugh test not with laughter but with anger. But it’s also because, generally (we hope), in our society people in high offices aren’t able to take official actions that they themselves don’t think pass (what they see as) the laugh test. (If people who can do that get into the highest levels of power, then you’re screwed, and at that point there’s no sense hoping that law will restrain them anyway.) Again, that’s not to argue that the laugh test is “enough.” But it’s what we have.

          What this reminds us is that there’s no escaping the fact that it matters whom we elect to high office. It wouldn’t pass our laugh test if agents of the government claimed they could detain this person as an enemy combatant for questioning beyond the Rule 5(c) limit (oh, but he’ll be deposited into the civil courts when we’re done with him). And it didn’t pass the laugh test of the government that currently holds power. But the main representatives on these issues of the main party of opposition went out of their way to say that, not only would that have passed their laugh test, but that this government made a serious mistake in not actually taking that step.

          We want the rule of law to constrain our leaders, and for the most part it does. The rule of law is mostly pretty clear but at the edges is can be and will be stretched. We hope that stretching doesn’t fail our view of the laugh test. Failing that, we hope our leaders at least care that their stretching of the law in some form or fashion doesn’t fail their distended version of a legal laugh test (otherwise they’ve become simply lawless tyrants. Maybe I’m odd in actually really thinking that particular distinction is really important, however I feel about the status of their laugh tests.) But ultimately, you can’t ever get away from the fact that it matters who gets in power. This moment is a good one to note differences between our major viable factions in how the actual actions that have been taken here relate to our laugh test on this question, compared to how the statements that the opposition has made about those actions relate to it.Report

          • BlaiseP in reply to Michael Drew says:

            There’s another factor at work here: the guys in the black suits are people, too. There’s very considerable push-back within the intelligence and law enforcement communities against abuses of power — at lower levels, to be sure, but often at higher levels.

            We’ve never evolved a mukhabarat here in the USA, though J Edgar Hoover’s FBI came pretty close. There’s not enough loyalty and fear in play to make a mukhabarat work here in the USA. Most of these folks are ex-military and there’s a certain ethos of decency and commitment to mission instilled in these people. Even at its most nefarious, the CIA was never much given to enforcing tyranny.

            Case in point: during Operation Phoenix, 1968, the RSVN went on a murderous rampage, rounding up civilians, torturing them. Truly horrible. Americans weren’t doing the torturing but they knew about it. The ARVN and the White Mice (RSVN police) did truly appalling things. The American operators rebelled against it: a guy named Ed Murphy who’d been involved in it exposed the whole thing. After Operation Phoenix, the entire CORDS community went to management and said the South Vietnamese government was too broken to fix, that they were in many ways worse than the Communists.

            Abu Ghraib was a Sunday school picnic compared to what went on in Operation Phoenix. It was American operators who put an end to it, knowing they were making more enemies than they were eliminating.

            That’s what the guys in the black suits do when they’re confronted with evil. I have more faith in them than most people, though I admit my own biases in all this. They might wear black suits but some of America’s most conscientious people are inside them.Report

            • Patrick in reply to BlaiseP says:

              There’s something to this, Blaise, but the institutional and individual cognitive biases of authority are still there, and at the governmental layer you can do an awful lot of harm before that whistleblower dusts off the white hat.

              Not that this is unexpected, or especially nefarious. It’s just a problem of scale.Report

              • BlaiseP in reply to Patrick says:

                Seen from the outside, it’s understandable people might reach such conclusions. Cognitive biases being what they are, that’s a problem which goes both ways. I’m sick of all the Bogeyman Talk. It accomplishes nothing. The people inside are no different than the people outside. It’s also the most irritatingly stupid thing about mainstream Libertarianism, their fearful idiocy about the form and nature of government.Report

      • Dave in reply to Mark Thompson says:

        Even the AUMF, as I recall, required “direct” support of al-Qaeda or the Taliban.

        Exactly. Do you remember the so called “Terrorist Surveillance Program” (commonly referred to by me as the Bush Administration’s violation of the Foreign Intelligence Surveillance Act of 1978)? The Administration made the claim that the AUMF gave it the ability to not act within the limits of duly-enacted statues.

        There are people that would argue for an enemy combatant designation on the basis that the war on terror is global so anywhere an alleged terrorist is caught constitutes a battlefield. However, that argument has never been fully subject to judicial review. The argument would fail miserably. First, I think ex-Parte Milligan most certainly holds here. Second, based on the current composition of the Court and, where applicable, their previous rulings in War on Terror cases, both the liberal wing and Justice Scalia (per his Hamdi dissent) wouldn’t stand for it.Report

        • Mark Thompson in reply to Dave says:


          There are people that would argue for an enemy combatant designation on the basis that the war on terror is global so anywhere an alleged terrorist is caught constitutes a battlefield.

          Not only would this argument fail miserably, but it’s also outright frivolous – these same people would be absolutely livid if, say, it were proposed that the Hutaree Militia people (also charged with terrorism offenses, though ultimately acquitted on the most serious charges) could be designated enemy combatants under this same theory.Report

        • Qub in reply to Dave says:

          There are people that would argue for an enemy combatant designation on the basis that the war on terror is global so anywhere an alleged terrorist is caught constitutes a battlefield.

          Including Lindsey Graham, on the floor of the Senate during the debate over the indefinite detention provisions of the 2012 National Defense Authorization Act. See here (PDF), on p. S7676, right column near the bottom.

          Mr. GRAHAM. Would the Senator [Kelly Ayotte] agree that what we have been able to do on the committee is basically say, in law for the first time, that the homeland is part of the battlefield; that military custody is available to hold a suspected al-Qaida operative caught in the United States—American citizen or not—but we are going to allow the administration—this administration and all future administrations—
          to change that model if they believe it is best?

          To me, we have created a right by our intelligence community, law enforcement
          community, to do at home what they can do overseas. If we do not do that, that would just not only be absurd, I think it would make us all less safe for no higher purpose. So to my colleagues who believe we are changing something, all we are trying to do is
          make sure that when the enemy makes it to America, we can hold them and gather intelligence to protect ourselves, no more and no less.

          We start with the presumption of military custody. …


        • Michael Drew in reply to Dave says:

          My understanding is that the reason Tsarnaev so clearly fails the laugh test to fall into combatant status under AUMF is not that he was apprehended in the U.S., but that there is simply no even arguable evidence that he can can be tied, even by the broad language in AUMF, to terrorist groups covered in that law.

          Separately, he cannot under statute as a U.S. citizen be tried in a military commission. But that is not the same question as to whether he can be held for questioning (prior to domestic civil trial… or “prior”) as an enemy combatant.

          That we (and, from what I’ve read, various lawyers) can’t necessarily agree on why the laugh test is failed here is, I fully grant, reason for Jaybird to be less than fully comfortable with the idea that laugh test gives protection against what he’s worried about.Report

  7. Kazzy says:

    On Hannity today, he and Senator Graham were discussing how they NEED to declare him an enemy combatant so that they can interrogate him and determine if he is indeed an enemy combatant.

    And they were 100% serious.Report

    • BlaiseP in reply to Kazzy says:

      I have my own little corn-spiritry theory going on this one: they want this to go Enemy Combatant rather than Garden Variety Wacko because putting this thing before a civilian court is going to turn on the light in the proverbial Bathroom Full of Cockroaches. FBI, CIA, NSA, local criminal databases, especially FBI, who apparently knew the mother was going ultra-religious and seems to have interviewed the family. That’s why the parents divorced, she was going all Allahu Akhbar, as she is now. Now FBI has its eyes rolled to heaven and whistles, hoping nobody noticed how they they screwed this up.

      It will all come out in court. That’s the last thing the FBI wants. They want this thing to go military so it can all be hushed up.Report

      • John Howard Griffin in reply to BlaiseP says:

        Yep. What Blaise said.Report

      • Michael Drew in reply to BlaiseP says:

        Eh. I think all that was coming out forthwith in any case.Report

        • BlaiseP in reply to Michael Drew says:

          In public court? A military commission can be (and routinely is) closed at the discretion of the presiding officer.Report

          • Michael Drew in reply to BlaiseP says:

            No, I mean how do you know it now anyway? It’s already coming out just via reporting – started to right after they figured out who these guys are/were.Report

            • BlaiseP in reply to Michael Drew says:

              There’s no evidence for any of these assertions. No names, no details, just a few hushed rumours.Report

              • Qub in reply to BlaiseP says:

                Why would it come out in a trial? How does such information, assuming it’s true, help either the defense or the prosecution?Report

              • BlaiseP in reply to Qub says:

                Why wouldn’t it? It would seem to go to motive. Ask the lawyers around here. If the FBI interviewed these guys and ever once wrote they weren’t a terrorist threat and didn’t put them on a watch list, I’d want to see that if I was his attorney.Report

              • Michael Drew in reply to BlaiseP says:

                Okay, but why would Hannity be so all-fired to keep that information about Obama’s stewardship of the intelligence community from coming to light?Report

              • BlaiseP in reply to Michael Drew says:

                Square Head Hannity is a weasel and a bully and a college drop out. Need I say more? He never served in the military. Funny how that goes: the guys who never served are all gung-ho to get the military involved in the justice system. Good thing he can’t read or he’d know those military tribunals generally let these guys go — guys like Sufyan bin Qumu — so they can be recaptured, fighting us again.Report

              • Qub in reply to BlaiseP says:

                I would like the lawyers to respond, since IANAL, and I’m guessing you’re not, either. But it seems to me that the FBI making a mistake is a pretty weak defense.

                (And that’s setting aside my objections to calling this a terrorist act–one could very logically conclude that the guy was not a “terrorist” threat, even after this act, since there’s no strong evidence of any real terrorist intent. This seems a heck of a lot more like Columbine than OK City.)Report

              • Burt Likko in reply to BlaiseP says:

                I’m probably not the right lawyer to ask about this subject.

                The idea of calling anyone not actually captured by uniformed military during a live-fire, set-piece battlefield combat an “enemy combatant” makes me very, very, uncomfortable.

                The idea that the government would claim that its conduct with respect to anyone at all — yes, including an “enemy combatant” meeting my intentionally narrow definition of that phrase — was not bound by any law whatsoever makes me simultaneously afraid and angry.

                The idea that some purported misdeed or mistake or shortcut might be laid at the feet of any number of various law enforcement or intelligence gathering governmental entities seems utterly irrelevant to the question of whether a reasonable doubt exists as to the Tsarnaev brothers’ guilt. AFAIK, inquiry into such issues would be legally relevant to the criminal trial only if a colorable claim could be made that the FBI or some other entity had somehow induced one or both of the brothers into a series of events culminating in last week’s violent events, which does not seem to be a reasonable conjecture based on what I know from the media.Report

              • Mike Schilling in reply to BlaiseP says:

                IANAL but why is that admissible? (In addition to the fact that “The FBI interviewed this guy because he was acting a whole lot like a terrorist” isn’t the best defense you could make.) The FBI was wrong about how dangerous he was doesn’t materially affect how dangerous he was.Report

    • Mike Schilling in reply to Kazzy says:

      I agree completely, assuming of course that “he” and “him” are both Hannity.Report

    • Burt Likko in reply to Kazzy says:

      I refer the honorable Gentleman to Mark’s comments above concerning the “laugh test” as a minimum threshold for excellence in legal reasoning, some paragraphs above.Report

    • Dave in reply to Kazzy says:

      I’m glad I don’t listen to Hannity.Report

  8. Michael Drew says:

    Is this why so many people were citing 48 hours as the maximum window for the public safety exception when, as far as I can see, it doesn’t appear in Quarles?

    It always seemed plain to me that, failing the non-starting enemy combatant route, Tsarnaev would in any case have had to have been brought before a judge, where he would certainly have had an attorney present, which at that point essentially moots Miranda (any attorney will advise him whether he should, but that in any case has the right to, remain silent), and therefore also the issue of a prolonged (past 48 hours) public safety exception period. It also seems plain the me that that is why Graham had such a bug up his ass about trying to make the non-starting enemy combatant designation work.Report

  9. George Turner says:

    I utterly fail to see the point of sending a judge over to a hospital room to tell a guy who can’t speak that he has a right not to. I wonder if she also informed him that under Roe v. Wade he has a right not to carry a pregnancy to term?

    BTW, the Miranda warning says nothing about a right to not text, or remain tweetless, or however they’d phrase it. Tweet on, oh brave party warrior! Tweet on!

    It doesn’t matter if they botch the terrorism case. They’ve still got him on a moving violation, witness tampering (with both the front and back tires, so two counts), criminal trespassing, and not wearing a life jacket.Report

    • Michael Drew in reply to George Turner says:

      The point was to give him his initial appearance before a court on the charges he (so far) faces. Tell them what they are, what potential penalties he faces; establish for the record who he is, who his attorneys are; set up the next hearing – all that pointless crap. The rights explanation was just one thing they did while they were there; it wasn’t the whole point of the hearing.Report

      • Exactly – and as I note upthread, if he stopped talking after that hearing, it almost certainly wasn’t because he was read his Miranda rights (which, I again need to emphasize, he possesses regardless of whether they are read), but because the effect of the hearing was to put him in contact with an attorney, whose first words of advice were most assuredly “STFU.”Report

        • Michael Drew in reply to Mark Thompson says:

          To be fair to the argument, I think that the concern about Mirandizing generally reflects concern not that the explanation that one can be silent will be heeded, but that the warning will spur the defendant to request an attorney when he otherwise wouldn’t have, who will then do what you’re describing here. That seems like a pretty low-frequency scenario (I doubt that receiving the Miranda warning is what usually prompts people to request an attorney), but it does seem at least theoretically valid, since, if I am not mistaken, once that request has been made, questioning has to cease until the attorney arrives(?).

          Marcy Wheeler has been writing about delays in presentment of other suspects (in fairness, ones where somewhat less tenuous cases can be made that they could be “enemy combatants” under AUMF, such as Faisal Shazad), where the Obama administration has delayed up to two weeks before allowing the initial appearance before a judge, which she says in these cases is also the trigger for the appointment of an attorney. I asked in comments if she was aware if this was done after requests for an attorney were made, but she didn’t respond that I saw. I’m also not clear if these were cases where the enemy combatant claim was made, or what the justification for the delays were. But in any case, the key point being that much more key than the Miranda warning is really the prompt functioning of the actual judicial process.Report

          • To be fair to the argument, I think that the concern about Mirandizing generally reflects concern not that the explanation that one can be silent will be heeded, but that the warning will spur the defendant to request an attorney when he otherwise wouldn’t have, who will then do what you’re describing here.

            Oh, absolutely – I’m trying to get across that, in this specific case, that concern isn’t terribly relevant since the Feds never Mirandized him themselves, and the initial hearing required that he have immediate access to an attorney, whose first words of advice were assuredly “STFU.” If the hearing took place without him having access to an attorney, but he was otherwise Mirandized by the judge, he may or may not have continued to talk; but if he had access to an attorney but was not Mirandized, he would have almost certainly stopped talking. In other words, the issue here isn’t that he was Mirandized but rather that the judge held an initial hearing, at which access to an attorney was mandatory.

            I’ll have to look at the instances cited by Marcy Wheeler.Report

            • Michael Drew in reply to Mark Thompson says:

              Oh, absolutely. In that case we’re saying the exact same thing here and in my original comment just above.Report

            • Michael Drew in reply to Mark Thompson says:

              Funnily enough, I wonder whether the thing in the warning that spurs people to ask for an attorney, if indeed officers do notice a real tendency to that effect, is the “provided for you” language which might remind them, when perhaps they’ve forgotten under stress, that though the best legal representation will not be paid for by the state, some representation will be. If there’s one thing people are aware of in all this, it’s that lawyers cost money.Report

            • Michael – so I’ve looked at the two cases Marcy Wheeler discusses. While I absolutely share her concerns in both of those cases, it’s important to note that in those two cases, what happened in this case would not have been possible in those case. (Also worth emphasizing – her point that this Boston case does not signify that the Obama Administration respected the Fifth and Sixth Amendments in this case, but rather only that it shows the Magistrate did, is absolutely correct).

              The Shahzad case is the closer of the two parallels she focuses on since it also involved a situation where the defendant was “caught in the act,” and arrested without a warrant. However, in that case, the feds Mirandized him fairly quickly, but obtained written waivers from the defendant of his Miranda rights, as well as, I would presume, a waiver of his right to a probable cause determination. There is some room to question how voluntary those waivers were, but for purposes of whether that case is a valid precedent for avoiding an initial hearing in this case, we need to presume that the waivers were voluntary, particularly since he ultimately pleaded guilty without challenging the waivers. In this case, no such waivers were obtained – nor could they have been, precisely because Tsarnaev was never Mirandized by the Feds. In other words, if the Feds wanted to be able to continue interrogating Tsarnaev, they would have actually needed to do exactly what conservatives didn’t want them to do.

              The Arbabsiar case is a bit different, because he was initially arrested only after a warrant was issued by a Magistrate Judge. I haven’t researched this, but as I understand, that would satisfy the constitutional requirement for a speedy probable cause determination within 48 hours. The right to a prompt initial hearing is, as far as I can tell, not a Constitutional right, but rather a statutorily-defined right under Rule 5; one thing I do definitely know from my research yesterday is that it is also far less stringent with respect to the Feds’ obligations than the 48 hour requirement for a probable cause determination. That less stringent obligation, when combined with the fact that the pre-arrest issuance of a warrant means that the Magistrate in such a case is theoretically unaware of when the defendant is arrested, means that it’s a lot easier for the Feds to delay the initial hearing.

              It should also be mentioned that the Arbabsiar case also seems to have involved a waiver of Miranda rights, which again means that he was actually Mirandized. Arbabsiar was also arrested at an airport (which may have a somewhat unique legal status) and was pretty swiftly placed in military custody, so there may even be a plausible (if dubious) argument that he was never technically under arrest. Last but not least, he was specifically alleged in the initial complaint to have conspired with a foreign government in the commission of his alleged crimes, making it a fairly easy case for the government to claim that his custody fell within the ambit of international affairs, where the Executive generally has carte blanche.

              To be clear, I’m not defending the government’s actions in the above two cases, just explaining that the reasons timely presentment or a timely initial hearing were successfully avoided in those cases are not applicable here.Report

              • Michael Drew in reply to Mark Thompson says:

                That is an admirable section of content considering how quickly you produced it there, Mark. Thanks. I figured there were distinctions.

                I also appreciate the way you phrased the consideration of the requirements of the Fifth & Sixth Amendments as required by Miranda. It’s one thing to assert that someone’s Constitutional rights have been violated wrt to the Miranda warning (or absence thereof) during the course of an arrest/incarceration. I’m still dubious about exactly where such a violation might occur. But it’s a different question whether the government has fully respected those rights. It’s fair to say that playing tactical games around the precise Constitutional requirements for conduct given in Miranda – being willing to accept some risk to admissibility while not foreclosing the prerogative to seek admission, for example – doesn’t fully respect the spirit of Miranda. It’s also fair to say that in notorious cases involving public safety like this, we knew ahead of time that the government could be relied upon to not give a shit about fully respecting Miranda in any case.

                It’s also strange that, given that the government knew that there was to be a hearing at which they knew Tsarnaev would have an attorney, that they were concerned/surprised/objected when they were told that the magistrate intended to give a full explanation of the suspect’s rights at the hearing. The logic we’ve been discussing wold suggest that that would become nearly moot due to the presence of the attorney.

                Would you say that fully respecting (4)/5/6 Miranda rights might mean just not ever using the public safety exception to influence a decision to delay giving the warning at all? Or would it require trying ti figure out exactly what kinds of safety concerns are parallel to those seen in Quarles and only using it then? My point here is that this is hardly a black-and-white question, and also not the primary one law enforcement is going to be concerned with whenever they are there is a safety risk associated with a suspect that may continue to exist after he’s in custody. It’s a distinction (between “respecting” these rights and not, as opposed to violating them or not) that rests on almost no solid distinctions that I can see, and none that have been fleshed out by courts any further than the initial Quarles decision lays out, so there’s not much guidance for them to work from. Working under earnest concern for further threat given the reality of terrorist networks and also acute time pressure, given all that vagueness I guess I don’t really blame them for not really being able to do much to ensure full “respect” of these rights. I’m more concerned about actual violations – such as not promptly providing a lawyer when one is actually requested. and the like.Report

          • Kazzy in reply to Michael Drew says:

            “To be fair to the argument, I think that the concern about Mirandizing generally reflects concern not that the explanation that one can be silent will be heeded, but that the warning will spur the defendant to request an attorney when he otherwise wouldn’t have, who will then do what you’re describing here.”

            Emphasis mine.

            If people are concerned that defendants will request lawyers… well, they can go fuck themselves.Report

            • Kazzy in reply to Kazzy says:

              Sorry, that was almost certainly far more crass than it needed to be. But, seriously people, the right to and employment of a lawyer is a fundamental premise of our legal system. I don’t care how inconvenient it is or who finds it so… if you are going to complain about defendants realizing their right to an attorney, you have to divorce yourself of any notion that you are protecting freedom, liberty, or the Constitution.Report

            • Michael Drew in reply to Kazzy says:

              They are (and that goes not only for counterterrorism agents but for arresting officers and detectives all over the country… the issue being not if they get an attorney, but precisely when they decide to ask for one), so I guess they can…Report

              • Kazzy in reply to Michael Drew says:

                I wonder if we’d be better served if instead of having to ask for an attorney, the request for one was assumed and only a signed waiver would allow questioning absent one. I don’t know if we would be, but I’d be curious to see the implications of such an approach.Report

              • Michael Drew in reply to Kazzy says:

                In some ways it’s pretty weird that that’s not how it works. But at the same time I guess at some fundamental level, the police are called the police, because they’re the ones out policing the streets. It simply an inevitability that there is going to be a period of time from when they arrest someone to when an attorney gets on the scene. What happens in that interval is really what we’re talking about here, and it’s in the nature of police work to ask questions. What we’d be talking about there would be a prohibition on asking those questions. Beyond that, some arrested people are going to come straight out of the gate singing just as soon as the cuffs go on.Report

              • Michael Drew in reply to Michael Drew says:

                …A prohibition on asking those questions before getting the waiver. Which, as Burt has been pointing out, is thought to be the Constitutional gold standard for how an arrest is supposed to go down. The question is what kind of right or requirement that established norm (whose actual practical establishment as a matter of real police practice may be somewhat open to question) creates. Is the “prophylactic remedy” (yuck) of evidence exclusion as much as exists by way of an actual requirement to adhere to that norm, or is there a Constitutional requirement to adhere to the norm absent some special circumstances that allow departure, where exclusion is just the remedy for failure to do so (don’t confuse the requirement with the remedy!)? Web commentary from lawyers has seemed to be a bit all over the map on that for the last week. It’s been interesting.Report

              • Kazzy in reply to Michael Drew says:

                I’ve never been arrested (thankfully) so my familiarity with the proceedings is minimal. But, I presume that the cops can’t arrest someone without some degree of evidence… substantiated either via a warrant or whatever the type of arrest they make if witness to the commission of the crimes themselves. So, once they slap the cuffs on, we presume they have at least as much evidence as is necessary to justify slapping the cuffs on. At that point, any additional information is going to be used to prosecute the individual, to build a stronger case to go from “arrest” to “conviction”. As such, there should be no sense of immediacy. They can wait until they get back to the station house and turn the suspect over to trained investigators or the DA’s office, where they can offer the opportunity for a waiver or facilitate a lawyer’s presence.

                I imagine there might being scenarios where you’d want to question someone on the spot because of an ongoing commission of crimes. Thankfully, we have the technology wherein waivers could be generated on-the-spot.

                Another remedy would be to require that all conversations with suspects be audio recorded (again, we have the technology!) and, absent a full and unedited recording, any information gained from such conversations becomes inadmissible.

                I’m just a layman, but at least some of these steps seem really pretty simple to enact. I realize they’d make it harder on the police and the DA’s office, but I think having high expectations for those groups is a good thing.Report

              • Michael Drew in reply to Kazzy says:

                Except where games are being played, I do think that suspects are usually given the warning by the time they get back to the station, or shortly thereafter. I would be perfectly fine with putting that into statute, though. It would clear up a lot of this issue of whether they can delay the warning if they’re willing to sacrifice the statements as evidence. I think I tend to agree with you that clarity might outweigh a lot of other concerns now after witnessing some of the confusion about what is actually required regarding the Miranda decision and resulting norms.Report

              • Mike Schilling in reply to Kazzy says:

                Everyone having a lawyer wasn’t part of the original rules. For non-federal cases, it goes back only to 1963’s Gideon vs. Wainwright, one of those Warren Court decisions that we’re so often told amounts to judicial tyranny.Report

    • Jaybird in reply to George Turner says:

      I utterly fail to see the point of sending a judge over to a hospital room to tell a guy who can’t speak that he has a right not to.

      Because it checks a box, makes sure that procedures are followed, and that, in a trial, the defense cannot say “my client was never mirandized”.

      If it’s such a small thing to tell a guy who can’t speak that he has the right to be silent, why not tell a guy who can’t speak that he has the right to be silent? What harm could possibly be done from doing so that isn’t greater than the harm of *NOT* doing so?Report

    • I utterly fail to see the point of sending a judge over to a hospital room to tell a guy who can’t speak that he has a right not to.

      The point is that it’s the process that every criminal defendant is due. The point is that due process is at the very core of what the United States of America is about. The point is that due process in criminal cases is the single most important and frequently-invoked right found in the Declaration of Independence. The point is having that hearing, sending a judge and a lawyer to protect the rights of a criminal as heinous and morally despicable as Dzhokhar Tsarnaev by all accounts appears to be to make good and damn sure that he gets a fair trial before we send his sorry ass to prison until he dies there (either of old age or at the hands of the government) is the FUNDAMENTAL REASON THAT THIS NATION EXISTS IN THE FIRST PLACE.

      Dzhokhar Tsarnaev is not an existential threat to this nation. But dismissing due process as a superfluity is.Report

      • Mike Schilling in reply to Burt Likko says:

        There are two sorts of people in this country: those who think that if every suspected terrorist isn’t flown directly to Gitmo to be waterboarded the terrorists win, and the people who think the first sort are evidence that the terrorists are winning.Report

      • George Turner in reply to Burt Likko says:

        But if the defendant has a right to avoid self-incrimination, doesn’t he also have a right to testify in his own behalf, which would be a right TO speak? But wait, we shot him in the throat – so he can’t. How convenient. Maybe the police should start doing that to every suspect facing a jury trial. ^_^

        If one of his IED’s had blown his hands off, we’d have a functional mute. If he’d gotten blinded and deafened in the same blast, we’d have one heck of a Helen Keller on our hands! The defense lawyer would file a string of objections to the prosecutor poking the defendant. “But your honor, I have to p0ke him! It’s how we communicate!”Report

  10. Tim Kowal says:

    As the resident staunch conservative, I’ll weigh in here with the disclaimer that I’m not a criminal procedure expert. But I think Mark is basically right.

    The conceptual first step seems to be this: how are the authorities going to treat Tsarnaev? (1) An ordinary civilian criminal suspect to whom Miranda and all other ordinary rights attach? (2) An ordinary civilian criminal suspect involved in a matter concerning an exigent threat to public safety to which the public safety exception applies? (3) Or as an enemy combatant in a war.

    There seems to be some confusion out there about whether Tsarnaev’s case false falls under (2) or (3). Even under (2) pre-Miranda questioning is permitted only to alleviate the exigency, not to build the prosecution’s case, or to build a case that he is an “enemy combatant.” And once the exigency is over, he must be Mirandized, whether or not authorities have more questions about whether or how he became radicalized or about al-Quaeda or other terrorist plots. [By “other terrorist plots” I mean those that are not exigent.]

    I agree with Mark that, if authorities are not going to treat him as an enemy combatant, and until that determination is appropriately made, the suspect’s constitutional and procedural rights attach. In this regard, I agree with Mark’s analysis regarding applicability of the public safety exception, i.e., that it does not give authorities 48 hours additional time to extract evidence from civilian suspects to prove enemy combatant status.

    If the authorities were going to proceed under (3), the enemy combatant scenario, the DOJ could have tried to establish enemy combatant status with the evidence it already had (and even with the information it extracted under the public safety exception so long as the questioning was not directed to this purpose). This again would fit into Mark’s conclusion that one would have to argue “that he should not have ever been subject to the jurisdiction of civilian courts.” (At least, I think it does. But wouldn’t the “enemy combatant” determination have to be made by a civilian court? This is one of many lacunae in my familiarity with crim pro.) And if Tsarnaev were determined to be an enemy combatant, he would not be entitled to all the protections applicable in civilian courts, e.g., include the right to a lawyer, the right against self-incrimination, and the right not to be held indefinitely without being charged with a crime. I do recognize this is a serious determination with serious concerns on both sides.

    In sum, because it appears that the authorities were purporting to operate under the jurisdiction of civilian courts, Tsarnaev was required to be Mirandized unless there was a exigent threat. Assuming the threat was gone, and again assuming the authorities were not going the enemy combatant route (which would pose separate challenges), there was no basis not to Mirandize Tsarnaev.Report

    • Michael Drew in reply to Tim Kowal says:

      So your view is that Miranda does actually require the warning; that police are not at liberty to choose not to give it if they are willing to sacrifice whatever the suspect might say as evidence?Report

      • I won’t speak for Tim.

        My view is that with narrow exceptions like those described in Quarles interrogations without the Miranda warning are unreasonable and any evidence elicited therefrom constitutes compelled self-incrimination.

        The implications of the enemy combatant standard Tim describes above are why I advocate a very narrow definition of that term. Dzhokhar Tsarnaev was not captured on a battlefield by the military. He was arrested by the police after apparently committing a series of awful, violent crimes. He is an accused criminal, and he should therefore be treated by our justice system as any accused criminal would be.Report

        • Michael Drew in reply to Burt Likko says:

          I have my doubts that Tim shares your view that it turns out to be the Fourth Amendment that turns Miranda from on evidentiary rule that the state can make its decisions abut into a positive requirement for police conduct. But the reason I was asking him, no offense, was because I already knew that was your view. So let’s see what he has to say.Report

      • Tim Kowal in reply to Michael Drew says:

        If he’s not arrested, you mean? I think all those procedural rights attach once he’s arrested, unless he’s an enemy combatant. I’m not expert enough to answer your question precisely. I think there is an argument there, that the Miranda rights are prophylactic and not strictly the bare minimum the Constitution requires, and the trade-off the Court has prescribed for not Mirandizing is that the courts will not recognize as evidence any information the authorities extract post-arrest and pre-Mirandizing. But beyond that, I’m out of my wheelhouse.Report

        • Michael Drew in reply to Tim Kowal says:

          No, I mean after arrest. It’s kind of an esoteric (there’s a better word I can’t think of right now) question. I’d invite you to follow Burt’s link which I expect he’ll happily give to his argument that it’s the right against unreasonable search that actually bars the questioning except in exigent circumstances, in case you hadn’t read it. But it sounds like in any case you agree that the exclusion is just the remedy for a violation of the protection against being forced to be a witness against oneself, not the means that the Court chose to actually prevent it from happening (rather than just to deter police from doing it).Report

          • Tim Kowal in reply to Michael Drew says:

            I’m usually a fan of esoteric, but I’ve been mired in mind-numbing discovery responses this week that I’m still finishing up, so I seem to be unable to get to the nub of your question. If it is what I think, I’ll point that your question specifically asked if I think “Miranda” requires the warning, and I responded yes, Miranda does, noting that Miranda requires more than the Constitution does. That doesn’t mean I think the Constitution allows police to just strap anyone down without justification and ask questions all they like on the basis that “don’t worry, we won’t use it as evidence against you.”Report

            • Michael Drew in reply to Tim Kowal says:

              So to be clear, your view is that Miranda requires the warning be given; it doesn’t just require that statements given prior to or if the warning is not given not be admitted as evidence. But that the Constitution may not require this.Report

              • Tim Kowal in reply to Michael Drew says:

                I think I finally see the point you’re underscoring. My understanding is that Miranda does not recognize any new rights, i.e., that would give rise to a claim by a suspect who wasn’t Mirandized when he should have been. The enforcement mechanism is excluding evidence and whatever other cause of action may lie for abuse of process or similar. In other words, there’s no cause of action for failing to read Miranda rights. And what else could it mean for Miranda to “require” something?Report

              • Michael Drew in reply to Tim Kowal says:

                Well, that’s what I’m struggling with. The argument is to not conflate the requirement with the remedy.

                An analogy would be the argument against the individual HC mandate that regardless of the penalty, the language actually command(eer)ed citizens to make this purchases, with the penalty being the fine. (Which in that case is true about the language of the statute, whether or not that makes it unconstitutional).

                So the question here is… there’s clearly a remedy (or alternatively a procedural prophylaxis preventing the violation of the right in the first place); but is there a command on police behavior (“Give the Warning. Period. If not, here’s the penalty.”)? Or just a certain consequence laid out consequent to a certain way of proceeding (“If you don’t give the warning for a while, here’s what happens.”)?Report

              • Tim Kowal in reply to Michael Drew says:

                Police are educated about procedure, and if they want to get convictions, they follow it. That’s one way procedural rights are enforced, i.e., exclusionary rules like “fruit of the poisonous tree” doctrine, etc.

                Another more palpable way they’re enforced is common law tort doctrine like false imprisonment, assault, battery, etc., to which police are exposed if they go off-book and unjustifiably fail to give due process.Report

            • Michael Drew in reply to Tim Kowal says:

              …Also, of course, the Constitution may govern whether straps can be used and just how much questioning at a sitting can be engaged in entirely separately from prohibiting forced testimony against oneself or requiring an attorney be provided.Report

        • Will H. in reply to Tim Kowal says:

          I believe the rights attach as soon as a seizure is effected.
          A seizure is effected when a person feels unable to voluntarily end the encounter. (There’s actually a bit more to it than this.)
          When a vehicle is stopped, all persons, and not just the driver, are ‘seized;’ i.e. they have to have probable cause at that point to require that passengers remain on the scene.Report

          • Michael Drew in reply to Will H. says:

            Establishment that seizure of the person was reasonable is identical with establishment that there was probable cause for the arrest. The person can then be kept in custody for so many hours before a judge must review to affirm that the cause was sufficient to justify the arrest (and continued detention… or not).

            I think.Report

    • I really appreciated this comment, Tim. Thank you.Report

  11. John Howard Griffin says:

    I would like to thank (specifically) Mr. Thompson for his excellent post. I’d like to thank Mr. Likko and Mr. Kowal for their comments and sharing their expertise. I’d like to thank everyone else for exploring the topic to the very edges, and for coloring mostly within the lines and not copying off anyone else’s sheet.

    I would also like to thank Freya that her Day is today.Report

  12. Michael Drew says:

    Wow. Just want to flag this for later discussion. As the article says, this isn’t as nutty as it might sound, and that fact is every bit as depressing as it might first seem to be. And this doesn’t appear in some nutball publication: