Anderson: Brown v. Mississippi excludes evidence obtained by torture, …

… but if it’s for intelligence purposes…. That’s kind of the gist of this thread.

Anderson: … and depriving people of their rights under color of state law is at least a civil offense under 42 USC 1983.

But if they have no “rights”, the inquiry stops there.

Cheers,

Brown v. Mississippi excludes evidence obtained by tortur, and depriving people of their rights under color of state law is at least a civil offense under 42 USC 1983. Police who torture prisoners are, I think, routinely prosecuted under federal criminal statutes, tho crim law isn’t my thang.

Christopher Cooke: Here is another wrinkle that seems to be missed:what are the consequences of treating someone as a POW or “unlawful” enemy combatant? My understanding is that, unlike a criminal, a POW is entitled to be released when hostilities are ended. Do we really want to release someone in 10 or 20 years, who tried to blow up a civilian airliner? I would prefer to try him as a criminal and convict him of a crime and obtain the maximum punishment allowed by law against him. Sure, if the FBI or CIA thinks he knows important, active intelligence, they can continue to interrogate him, without Mirandizing him, and risk not being able to use the information obtained during such interrogations in his criminal trial. I also frankly don’t see how we can infer that it was reading the “Miranda” warnings to him that made him “stop talking.” Did he suddenly think, “Oh my god, Perry Mason may get me off, I better shut up?” The notion strikes me as far-fetched. Probably, after his break, he realized he had violated his novice terrorist training, which counsels him to shut up if captured. Anyway, as others have noted, this seems to be a somewhat hypocritical, symbolic criticism that is being used by conservatives to paint the President as “soft” on terror (did Paul Gigot write an outraged WSJ editorial over Reid’s handling? Of course not). It would be far better to use something else than a two-faced WSJ editorial as a vehicle to prompt a serious discussion as to what we do with these types of “hybrid” persons, i.e., they are both criminals and un-uniformed combatants. I think these are serious issues and informed persons can reasonably disagree about what is to be done.

That is one reason I don’t care for this quasi-POW classification (Enemy Combatant) that they created for the purpose of getting around the POW protections. They claim this is a ‘War’ yet don’t want POWs. True that in our previous wars POW status was not conferred on un-uniformed combatants, which I believe were tried and killed as spies, generally. This is a new kind of War though. Everyone is plain-clothed and I worry about the slippery slope this creates with the whole ‘domestic terrorist’ focus.

what are the consequences of treating someone as a POW or “unlawful” enemy combatant? My understanding is that, unlike a criminal, a POW is entitled to be released when hostilities are ended. Do we really want to release someone in 10 or 20 years, who tried to blow up a civilian airliner? I would prefer to try him as a criminal and convict him of a crime and obtain the maximum punishment allowed by law against him. Sure, if the FBI or CIA thinks he knows important, active intelligence, they can continue to interrogate him, without Mirandizing him, and risk not being able to use the information obtained during such interrogations in his criminal trial.

I also frankly don’t see how we can infer that it was reading the “Miranda” warnings to him that made him “stop talking.” Did he suddenly think, “Oh my god, Perry Mason may get me off, I better shut up?” The notion strikes me as far-fetched. Probably, after his break, he realized he had violated his novice terrorist training, which counsels him to shut up if captured.

Anyway, as others have noted, this seems to be a somewhat hypocritical, symbolic criticism that is being used by conservatives to paint the President as “soft” on terror (did Paul Gigot write an outraged WSJ editorial over Reid’s handling? Of course not).

It would be far better to use something else than a two-faced WSJ editorial as a vehicle to prompt a serious discussion as to what we do with these types of “hybrid” persons, i.e., they are both criminals and un-uniformed combatants. I think these are serious issues and informed persons can reasonably disagree about what is to be done.

Jeff Hall: … should this man have been treated as an enemy combatant until we got what intelligence he had to give us?

Isn’t that: “… should this man have been tortured until we got what intelligence we wanted to hear?”

Cheers,

Unlike Mr. Reid, it was clear from the very outset that Mr. Abdulmutallab is an enemy combatant rather than a mere criminal or madman.

mr. reid? he prefers to go by harry, thankyouverymuch.

also, i do appreciate your succinct (summary?) judgment because i see in you a way to reduce the federal deficit. can the judiciary and the entire lumbering, tedious, expensive court system, i say and nominate jeff hall as chief arbiter of the nation. maybe you can even have a tv show so the govt can earn some revenue with the ads? but you need to add some sass to your repertoire if you wanna make it work….

My response is simply that the Constitution guarantees liberty by setting forth a society governed — at least within the territorial limits of the United States — by the rule of law. When I see people like yourself scoff at the need to define enemy combatant and set forth procedures for determining who is one as you just did above, I have to conclude you don’t take the idea of the rule of law very seriously.

Ricardo: Jeff, which is why these discussions never move anywhere.Those of us who have read the Constitution, know the historical context in which it was written and the actual early history of how the government dealt with subversive and treasonous plots (Whiskey Rebellion, Aaron Burr, etc.) know that deep suspicion of emergency powers and the power of a standing army permeate the whole document.If you’re not going to acknowledge this, we have to agree to disagree and leave it at that as this is all well-trodden ground.

Of course I acknowledge these things. But the question isn’t whether we should be suspicious of the government’s actions; the question is (1) does the President have the authority to wage war and (2) should this man have been treated as an enemy combatant until we got what intelligence he had to give us? The answer to both of these clauses is “yes”.

More generally, the Constitution is a document with a purpose. It’s purpose is to defend the liberty of the “People of the United States.” Its purpose is most certainly not to defend the liberties of armed foreign invaders.

Conversely, Corporate dollars in our politics are not a big deal at all, and besides corporate spending limits are a huuuge weight on liberty!

If you’re not going to acknowledge this, we have to agree to disagree and leave it at that as this is all well-trodden ground. Moreover, your suggestion that courts could issue writes of habeas corpus for detained alleged enemy combatants raises the question of what, exactly, courts should look at to determine the legality of detention.

Jeff Hall: Unlike Mr. Reid, it was clear from the very outset that Mr. Abdulmutallab is an enemy combatant rather than a mere criminal or madman.

Grasping as straws, eh? LOL. It’s rather pathetic, you know, and demeans you more than anything else.

Cheers,

Jeff Hall: If you really think that the courts and a cumbersome legal process must come into play each time we capture or attempt to kill an enemy in wartime, then you are free to petition Congress to amend the Constitution.

If you really think that the law we have doesn’t apply each time we capture or attempt to kill an enemy in wartime, then you are free to petition Congress to amend the Constitution.

Cheers,

Howard Gilbert: You do have a right not to be tortured, or to be subject to abuse or intimidation or threats during questioning.

No. Only after conviction, and then only if it’s meant as punishment. Ask Scalia. And Thomas. Other than that, anything is fair game, Constitutionally, that is….

Cheers,

Ricardo:
The issue isn’t so much the Miranda warning.It is insisting (like the Washington Post editorial posted on yesterday) that he be placed in military custody.That’s not necessarily a violation of his rights but the burden ought to be on those who support that course of action to:a) define “enemy combatant” in a clear manner
b) say what kind of process they want for determining whether someone arrested on U.S. soil is an enemy combatant and
c) show what facts should have led the government to immediately place him in military custody.If the answers are a) I know it when I see it, b) whatever Obama and Holder say, and c) see (a), that’s why the discussion never moves forward.I actually care very little about what happens to Abdulmutallab individually.What I do care about is “terrorism” or “enemy combatant” being defined downward in the same way racketeering or fraud have been to the point that it begins to eviscerate basic Constitutional rights.

This is not a rhetorical exercise, nor is it a matter for the courts to decide (except afterwards with a writ of habeus corpus.) The Constitution gave us a single Chief Executive who is also the Commander-in-Chief of the armed forces. He really is responsible for who we decide to capture, who we decide to release, who the Army shoots and who the Air Force drops bombs on. If you really think that the courts and a cumbersome legal process must come into play each time we capture or attempt to kill an enemy in wartime, then you are free to petition Congress to amend the Constitution.

But until they get around to doing that, President Obama is Commander-in-Chief. If he was unwilling or unable to take on that awesome responsibility, I wish he had let us know sometime before his Christmas vacation in Hawaii.

Jeff Hall: I don’t get it. How is giving Miranda warnings to admitted enemy combatants a “sacred belief”? We’ve never done this in the two centuries before this creep put explosives in his pants. Were we “tossing our freedoms away” in every war we’ve ever fought until now? Huh.

The issue isn’t so much the Miranda warning. It is insisting (like the Washington Post editorial posted on yesterday) that he be placed in military custody. That’s not necessarily a violation of his rights but the burden ought to be on those who support that course of action to:

a) define “enemy combatant” in a clear manner
b) say what kind of process they want for determining whether someone arrested on U.S. soil is an enemy combatant and
c) show what facts should have led the government to immediately place him in military custody.

If the answers are a) I know it when I see it, b) whatever Obama and Holder say, and c) see (a), that’s why the discussion never moves forward. I actually care very little about what happens to Abdulmutallab individually. What I do care about is “terrorism” or “enemy combatant” being defined downward in the same way racketeering or fraud have been to the point that it begins to eviscerate basic Constitutional rights.

Federal Farmer:
It’s not your daddy’s war.He is not a uniformed soldier, therefore not a prisoner of war.He was caught in America, not some foriegn battlefield, so he’s a criminal.He is no different than the shoebomber, who was treated as a criminal during the Bush Administration.
Plus, I guarantee you he don’t know squat anyway.Send a team after al-awlaki if you want to know what’s going to happen.

I did not say that this is my Daddy’s war. Whether he is a prisoner of war is immaterial; he committed an act of war witnessed by dozens of people, and he freely admitted to being a member of a paramilitary organization with which we are at war. Unlike Mr. Reid, it was clear from the very outset that Mr. Abdulmutallab is an enemy combatant rather than a mere criminal or madman. At any rate, Mr. Reid was tried in the civilian court system after the very highest levels of government decided that it was in our best interests to do so. Mr. Abdulmutallab was Mirandized after only 50 minutes. I’m sure that the President has spent more time than that deciding what to wear for the upcoming State of the Union address.

Finally, unless you are a compulsively truthful high-ranking member of Al-Qaeda, your guarantee that he doesn’t “know squat” is valueless to me. Gathering intelligence is a slow process of accumulation and analysis. Throwing away a valuable and unexpected source like this was criminal waste. That the administration only thought it was worth 50 minutes of thought is just breath-taking.

Jeff Hall: I don’t get it. How is giving Miranda warnings to admitted enemy combatants a “sacred belief”? We’ve never done this in the two centuries before this creep put explosives in his pants. Were we “tossing our freedoms away” in every war we’ve ever fought until now? Huh.

It’s not your daddy’s war. He is not a uniformed soldier, therefore not a prisoner of war. He was caught in America, not some foriegn battlefield, so he’s a criminal. He is no different than the shoebomber, who was treated as a criminal during the Bush Administration.
Plus, I guarantee you he don’t know squat anyway. Send a team after al-awlaki if you want to know what’s going to happen.

Federal Farmer:
Agreed.We cannot sacrifice our sacred beliefs in the hysteria of an attack, successful or failed.What good is it to save American lives if we have to toss away the freedom that a great many American’s have paid for with blood?As Judge Napolitano correctly pointed out, Patrick Henry did not say “Give me safety or give me death.”

I don’t get it. How is giving Miranda warnings to admitted enemy combatants a “sacred belief”? We’ve never done this in the two centuries before this creep put explosives in his pants. Were we “tossing our freedoms away” in every war we’ve ever fought until now? Huh.

~aardvark: his purchase of tickets with cash does not raise red flags (as it is purfectly normal and customary for that part of the world)

For those comparatively few Africans who hold credit cards, a round-trip ticket that could cost over $2,000 would probably exceed their credit limit. You’re right: cash is the norm there.

You do have a right not to be tortured, or to be subject to abuse or intimidation or threats during questioning. These are substantive rights that might be violated. However, if you are not abused but simply believe that you are compelled to speak, then that is a basis to suppress what you say as evidence but not a violation of rights.

If Abdulmutallab is (or at least regards himself as) a soldier in an enemy army then the rules for his detention fall under international law and not US domestic law, including the Constitution. In that case he has an absolute obligation to give his name, rank, and serial number or its equivalent. He cannot remain silent, but having provided this information he cannot be compelled to provide any additional information.

As someone getting off an international flight, he is also subject to detention for immigration purposes. He had a visa which would be valid as a civilian, but which would be invalid if he is an enemy combatant. Someone who is being questioned about his immigration status also does not have a right to remain silent. He has to answer the questions put to him (“What is the purpose of your visit to this country. How long do you intend to stay. Did you declare those underpants on your customs forms. What is the value of the material you were smuggling into the country in your underwear. Do you have a receipt to prove the value of that material.”) The Fifth Amendment and Miranda do not apply to immigration and customs questions.

It is not against the law to be a soldier in a foreign army, even one at war with the US. That is a reason for being detained by the military or being refused entry into the US by Immigration, but it is not a criminal offense. Of course, we would not know and today still do not know exactly who he was associated with, so we cannot say if he was or wasn’t an enemy combatant. We have a right to ask these questions. He could remain silent, but he is not entitled to a Miranda warning because he is not in custody as a criminal suspect until the question is resolved.

You may say that he committed a crime in your opinion. You may say that dozens of people saw him do it. It doesn’t matter. He is not in custody as a criminal suspect until the Federal government makes the decision to handle his case as a criminal matter. They could decide just to deport him. It would be a really, really dumb idea, but it is a legally allowable course of action. They could detain him as an enemy combatant. They could decide he is to crazy to stand trial and commit him to a mental hospital. He doesn’t have to be Mirandized until the government decides to Mirandize him. The only consequence is that anything he says before being Mirandized is not admissible in court.

Jose Padilla was questioned by the FBI for a month without a Miranda warning. Then he was interrogated by the military for two years. Then a year and a half later he was released from military custody, arrested by civilian authorities, and Mirandized before being prosecuted in Miami on the old felony charges. Nothing he said during the previous three and a half years were introduced into his trial in Miami, so his Fifth Amendment rights were not violated. If they could wait three and a half years before Mirandizing Padilla, they could wait more than 50 minutes before Mirandizing Abdulmutallab.

Sure, we manage to get information out of criminals, but that’s mostly luck.

Point is, if you don’t want the Constitution to be a suicide pact, we need to break every law we know (they’re Obama’s laws anyhow), just like those badass cops in the movies do! Only we won’t be cops because terrorists are like cop kryptonite, making law enforcement lose all their powers.

In other news, Obama is a clear and present danger to the US, as are all socialist-marxist-liberals. Hell, their economic policies have probably killed more than the terrorists! If the Constitution is not a suicide pact, we need to do something unconstitutional about them too.

Bored Lawyer: Sure he had the right to remain silent. He could have invoked it any time. The point is he didn’t. True, he likely either forgot or perhaps, as a foreigner, was not aware of those rights. (The typical American has heard the Miranda rights innumerable times on TV. Myabe Nigerians haven’t.)

As an upper-crust Nigerian who lived in London for a bit and also previously visited the U.S., I’m pretty sure he’s seen at least one American cop show or movie in his time. I’ve never been to Nigeria but as a country with a large English-speaking population, It’s almost a certainty that a lot of American programming is available on cable TV.

MnZ: Huh? So, we should read him his Miranda Rights so he feels more at ease. I would posit that releasing him would also place him at even greater ease.

Only he doesn’t have the right to be released. He does, however, have the right to remain silent. If the government somehow contributed to his (not unreasonable) belief that he didn’t, or otherwise sought to compel him to speak, his right to remain silent has been violated.

If the government’s agents were aware of his uncertainty, or should have been, and if they allowed this uncertainty to continue much longer than necessary, I would consider that a reasonable theory for a violation of substantive rights other than his Miranda rights.

Huh? So, we should read him his Miranda Rights so he feels more at ease. I would posit that releasing him would also place him at even greater ease.

Good God…

Oren: I remember reading a while back an amusing story about the citizens of Morocco (or was is Algeria?) starting to demand their Miranda rights at about the time that Magnum PI or some other US cop show starting airing on TV there. It was much to their dismay when it was explained that those rights did not apply to them. 

Same here in Europe. Even after last year’s ECtHR rulings about the right to representation prior to trial, you still don’t have the automatic right to have an attorney present during questioning under ECHR law, or under most national European constitutions. (Under Dutch law, as amended after this new ruling, you now have the right to consult with your attorney, but not to have them with you in the room as you are being questioned.) But ask people in the street, and they’ll blindly assume they have the same rights as the people in those American law shows.

Bored Lawyer: Sure he had the right to remain silent. He could have invoked it any time. The point is he didn’t. (…)
 
Usually, that is tough luck. The Govt. is not obligated to remind you of your rights, it just cannot affirmatively abridge them. 

I’m not sure if that is true in this case. Given the precedents set by the Bush administration, this man would have been in some doubt as to whether he was being treated just like anyone else, or whether he was being subjected to the Padilla/GWOT/Unlawful Enemy Combatant treatment. Reading him his Miranda rights affirms (confirms?) the government’s POV that it is the former.

If the government’s agents were aware of his uncertainty, or should have been, and if they allowed this uncertainty to continue much longer than necessary, I would consider that a reasonable theory for a violation of substantive rights other than his Miranda rights.

IIRC, attempted murder doesn’t carry a capital sentence.

That’s amenable to a simple statutory fix.

The typical American has heard the Miranda rights innumerable times on TV. Myabe Nigerians haven’t.

I remember reading a while back an amusing story about the citizens of Morocco (or was is Algeria?) starting to demand their Miranda rights at about the time that Magnum PI or some other US cop show starting airing on TV there. It was much to their dismay when it was explained that those rights did not apply to them.

Not much relevance, but it’s a damn good story and, if true, a very powerful reminder that America’s soft power greatly exceeds her hard power.

So did what’s-his-name have the right to remain silent, etc., during those first 50 minutes or not? It’s not like he wouldn’t know about them, anyone who speaks English can sum up the Miranda rights. If he had those rights the whole time, then why did he suddenly stop talking when he was reminded of them?

Sure he had the right to remain silent. He could have invoked it any time. The point is he didn’t. True, he likely either forgot or perhaps, as a foreigner, was not aware of those rights. (The typical American has heard the Miranda rights innumerable times on TV. Myabe Nigerians haven’t.)

Usually, that is tough luck. The Govt. is not obligated to remind you of your rights, it just cannot affirmatively abridge them.

The point of Miranda is that the Govt. has to remind him of these rights to ensure there is no coercion. That is a prophylactic rule not required by the Constituion. If it fails to do so, it loses out on the ability to use that evidence.

random commenter: Either the editorial stands on the arguments it contains — and your comment suggests you didn’t read it — or it doesn’t. I don’t see any sense in the kind of virtual book-burning you’re advocating here.

There is no “bookburning” involved here. WSJ editorial page staff–and columnist–are notorious for their myopic, factless blather. The arguments don’t matter if the facts they are based on have absolutely no credibility–as you may know, a false basis will lead to false conclusions despite impeccable logic from point A to point B. If you want to corroborate the facts and then cite the editorial’s argumentation as valid BECAUSE the facts have been verified, that’s fine, but citing them for the facts AND argument is nonsense.

Abdulmutallab admitted he was from al Qaeda and was speaking “openly.” But then he was given a break and given Miranda warnings, after which he apparently stopped giving useful information.

This is a part of the problem with faulty information–you get lost between the noise and the message. From what’s become available from a variety of intelligence sources, there is no tangible evidence that the Yemeni “al Qaeda” has any relation to the original OBL’s “al Qaeda”. Imitation is the sincerest form of flattery even among terrorists. So this information point is completely irrelevant to the larger one. We could be debating the merits of trying terrorists in civil courts, but self-declarations of membership in al Qaeda are not a reasonable part of that equation–along with other “facts” that WSJ, MSNBC, John McCain (even after being called on his mistakes) kept propagating. For example, Abdulmutallab was not flying on a one-way ticket, he did not pay more than an average unrestricted non-first-class fare, his purchase of tickets with cash does not raise red flags (as it is purfectly normal and customary for that part of the world), the flight’s origin from Ghana was also not a red flag, and there were no specific rumors/intel circulating that would help to identify this guy in advance. Given such an abundance of false information dumped on us by the press, but politicians and by pseudo-experts, why would anyone consider blatantly political charges leveled by one side against the other–before the facts have been presented and verified–to be anything more than a political attack.

Have mistakes been made? For sure–both before and after the act. But most of us–Paul Cassel included–do not have access to complete and accurate information on the case. We can express opinions–and many do–but let’s not pretend that it’s the final or even definitive word on the subject.

Tatil:
Well, he does not look like the sharpest tool in the shed. Why does any criminal confess in the absence of any formal plea deal?

That’s one answer. If that is all there is to it, I’d have to agree with those earlier commenters who argued the Miranda issue isn’t very important.

If he had those rights the whole time, then why did he suddenly stop talking when he was reminded of them?

Well, he does not look like the sharpest tool in the shed. Why does any criminal confess in the absence of any formal plea deal?

Japan and German never posed that great a threat in WWII

Oh, boy, I am pretty sure that is news to most Americans.

So the only way for the US to respond to acts of war is if they threaten the “survival of the US, its culture, its constitution, or to the survival of the West?”

Yes, if the only “response” that would satisfy you is shredding the constitution. If we were living in Israel, it could be different. The threat there is more real and potential pool of attackers live right inside and around the country. Even then, it is hard to live with a system where the court does not have to disclose even the accusations to a defendant or his attorney. I don’t think that is what we want for ourselves, is it?

In any case, I think it is acceptable to keep a parallel judicial track, such as military tribunals, for those we catch outside of the US, as long as that tribunal is actually an independent and unbiased organization, where convictions will be solid even if the chain of evidence might be lighter than usual. Unfortunately, the early review process in Guantanamo did not sound like that with many innocents may have been tortured before and after their arrival and held for years before they unceremoniously got released. The “righties” ignore these cases by saying “They are all bad people, who cares?” They also don’t get riled up about expanded government power in this instance, as they don’t feel in any danger of being swept up into a torture chamber by mistake. It is much easier to cut off any protection for “them”, when you feel confident you could never be considered one of “them”.

Re Daily Kos and other sites and cites, I find that the better sites are those which embed videos and link to or excerpt actual documents or primary sources and images. The posts on Kos do this quite a lot, and many of the posts there are somewhat lengthy and dense with data, sometimes like Nate Silver’s. This work by the poster allows the reader to look at the evidence or data and make his own judgment. I never read the Kos comments.

This is pretty much my view of the left hand side of the main page. I find those posts generally reliable (which isn’t to say necessarily correct, just that the facts stated are true). I wouldn’t cite one of those posts here, though, because the discussion would get distracted. It’s easy to find a non-controversial source when something really is a fact.

This doesn’t apply when citing something which tends to undermine the position of the biased/unreliable source. Thus, if I cite Fox, it’s only because I can say “Even Fox agrees.” The same applies with equal force on the other side.

2. Re Daily Kos and other sites and cites, I find that the better sites are those which embed videos and link to or excerpt actual documents or primary sources and images. The posts on Kos do this quite a lot, and many of the posts there are somewhat lengthy and dense with data, sometimes like Nate Silver’s. This work by the poster allows the reader to look at the evidence or data and make his own judgment. I never read the Kos comments. Other sites have posters who are known for doing a lot of source document reading and digesting, like Marcy Wheeler on Firedoglake in certain subject areas. People who actually read Friday afternoon document dumps are more credible than those who make conclusions without facts.

3. Sites with short comments, like The Corner, tend to be just short snarky comments with no data. Everyone will have their own preferences, which occasionally likely transcend their personal ideology, as is demonstrated on the VC.