Some people are making silly (dare I say ridiculous?) comments in this thread about how I’ve suddenly become a big-government authoritarian because I don’t think that the Boston bomber should be read his Miranda rights, or necessarily questioned with a lawyer present. I think that this criticism arises largely from ignorance of the law and Constitution (along with a healthy dollop of hysteria). Orin Kerr explains the legal situation:
A lot of people assume that the police are required to read a suspect his Miranda rights upon arrest. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. The police aren’t required to follow Miranda. Miranda is a set of rules the government can chose to follow if they want to admit a person’s statements in a criminal case in court, not a set of rules they have to follow in every case. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a person’s Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Further, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement can be excluded. See United States v. Patane, 542 U.S. 630 (2004). So, contrary to what a lot of people think, it is legal for the government to even intentionally violate Miranda so long as they don’t try to seek admission of the suspect’s statements in court.
Emphasis mine.
It’s just that simple. There is no need to get his testimony in court, because the other evidence against him is overwhelming. What there is a need to do is to find out if there are other co-conspirators, and other bombs, and other plans. And as Orin also points out, there are even ways to get the evidence into trial even under these circumstances, should it be necessary.
The issue there is not his own court case, but a hypothetical #3 guy’s case.
That is: This idiot says “Hey, John Doe #3 helped!” They go find John Doe #3, find a wall of evidence against #3 … and the entire wall of evidence is thrown out because they only started looking at him due to ‘poisoned fruit’ evidence.
He’s “actively at war with the US” though. Formally challenge his citizenship ….
Oddly enough, poison tree only applies to evidence resulting from illegal searches (and on down), not statements made without Miranda.
Exactly–It’s right there in the quote: “Further, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement can be excluded.”
Countdown to Jim “We’re fragile. We’re fragile!!”
I envision something like the witch in wizard of oz after getting hit with a bucket of water.
I get the impression some people think the reading of Miranda is some magic spell that makes it moral for police to hold a suspect. Or prayer said of the God of Human Rights.
This is why it was so galling when we did it for the Underwear Bomber. He was talking and then he shut up when we asked him to. There was no moral or legal reason to do this. Just the childish stupidity of following a ritual seen on Law and Order.
Methinks you doth protest too much.
You weren’t just talking about not reading him his Miranda rights (and kudos to Professor Kerr for demystifying what that means), you were saying we should deprive the Boston bomber, a U.S. citizen, of all due process and “give him a firing squad” (your exact words from the other thread). At least be honest about what you wrote.
Well, that is the traditional manner of dealing with treason, which is what this was if he was involved in the war with our enemies. It was on the assumption that he would be classified as an illegal combatant. And even that doesn’t constitute “giving the government unlimited power.”
In my vision of America, you don’t get to deprive U.S. citizens of constitutionally-protected due process. And as for treason, neither Aldrich Ames nor Robert Hansen were denied their constitutional rights then stood up in front of a firing squad, and they almost certainly got more people killed than the Boston bombers.
I’ll rephrase what I said in the first thread: do you really want the Executive branch to have judge, jury, and executioner power, with no due process whatsoever, over any American citizen it decides is a terrorist? I sure as hell don’t, but that’s what your position means.
Put a jury trial in there on revoking his citizenship because he is “at war with” the US.
The lack of a specific target and the typical pronouncements of the jihadis should make that specific case quite quick.
But it is also not a filter that will catch up ‘any American’. Even some of the (still vile) domestic non-jihadi bombers would fail this specific test. And others would have tricky trials on this issue – so they ‘just’ get murder trials.
Oh, why would we do any of that when John Kerry could fiddle around and extradite him to China to face charges for murdering Lingzi Lu, a Chinese national? I’m sure they’d be delighted to take the case.
Thanks for the information. I was making statements of principle, not statements of legality. I imagine there were others making statements of legality though.
I don’t want the government to have the power to “interrogate” anyone. You have a right to remain silent isn’t just the start of some little speech cops say, it’s a self-evident fact.
Isn’t treason a statist concept?
(Repost, original disappeared somehow)
Isn’t treason a statist concept?
Yep.. but then, so is war. The idea that “national defense” somehow requires deploying troops is the absurdity which makes all the rest of the statist military possible. Standing armies, the draft, border control, military justice, secret police, it all starts by instilling an “us vs them” mentality that is quintessentially collectivist and demands a continual drain on the productive economy.
Border control?? Right, open borders would be such a boon to economic productivity. Who the hell would want to come here for entitlements anyway. And… of course there is the added advantage of Diversity©!!111
What could go wrong! Border patrol?? Stand ’em all down!
AND… We’ll all FEEL so much BETTER about ourselves too, you know!!!
Entitlements are a statist concept too.
It’s like banging your head into a brick wall isn’t it?
Entitlements? Were you even paying attention to the conversation?
So what happens when we find out he asked for a lawyer and was denied?
This is, in my opinion, one of the reasons Bush chose to call this a “War on Terror” rather than, say, a War on Islamic Fundamentalists Who Choose To Do Us Harm……
Connect “War” and “Terror” and you instantly can use wartime rules and not standard crime fighting rules whenever anyone commits an act of terror.