The first thing I find interesting about the discussion is that both liberals and conservatives seem to take their position as to whether Constitutional rights extend to non-citizens as an article of faith. Having read a very small amount of information about this question, it seems clear the answer is much more complex than suggested by the right or left (for example, UCLA law professor Stephen Volokh reviews the application of the First Amendment to noncitizens). Interestingly, the argument I have heard from the right on this isn't that Abdulmutallab was Mirandized, but that he was Mirandized at a time too early to properly obtain information from him. I haven't really heard many arguments out there that he should never have been Mirandized. I find this interesting in itself.
The Supreme Court seems to have clearly established a public safety exception to the Miranda warning in their 1984 decision in New York v. Quarles. Writing for the majority, Justice Rehnquist concludes:
...that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination [italics added]. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative [467 U.S. 649, 658] evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.
So it's fair to say the Miranda right can be abridged in certain situations. This seems to be exactly what was done in this case. We can debate whether we believe enough information was received prior to Abdulmutallab being told of his Miranda rights, but surely these rights have to mean something, right? In Quarles there was a very specific piece of information (the location of a gun) that needed to be obtained and until that very specific piece of information was obtained the Court was not willing to render evidence obtained from the interrogation inadmissible while this information was out there that posed a threat to public safety. If the public safety exception can be invoked for anybody being interrogated under the grounds that they might have some information about Al Qaeda, it basically renders this right meaningless. Surely no conservative (especially textualist) reading of a Constitutional right can allow for a construction that does that as applied.
The final point I want to make is in response to an idea that seems implicit in the unstoppable application of the public safety exception that the ends justify the means. I have talked with a good number of people and I've heard several say that even if the evidence obtained prior to proper Miranda warnings is inadmissible, it's worth it to make the evidence inadmissible if it leads to good intelligence. These responses seem less steeped in an understanding that Miranda warnings must be given unless an exception applies and more just a direct jump to the exception as the rule. Don't hear me minimizing the "public safety exception," but if we reduce it to a simple "ends justify the means" approach we risk serious damage to our Constitutional protections. Surely we do not want to reduce our rights to a calculation by the State as to whether it's worth the penalty to infringe them.
3 comments:
First thought, would there be a distinction between the underwear bomber - who did not have officially authorized entry into the U.S. at the time of detainment (I'm assuming they didn't send customs out before the feds) and authorized immigrants who arguably, and in my thinking correctly, would be afforded Constitutional rights. I think such a distinction would be proper.
Volokh's post that I linked on the First Amendment rights for noncitizens seems to assume a distinction between those two groups as you suggest. It also seems to assume that there are at least some Constitutional protections that apply as well to noncitizens.
"I have talked with a good number of people and I've heard several say that even if the evidence obtained prior to proper Miranda warnings is inadmissible, it's worth it to make the evidence inadmissible if it leads to good intelligence"
Or here's an idea: how about we get information that is admissible by following the rules, and then get good intelligence as well? It bewilders me why as to many people seem to be hanging onto the notion that the intelligence flow stops with the Miranda Rights being given. That is rarely the case, and it was certainly not the case in this particular instance. Because Abdulmutallab has the RIGHT to remain silent doesn't say anything about whether he WILL remain silent, or whether interrogators will find ways to get him to play ball.
I mean, haven't these people ever watched a cop show, in which the bad guy is arrested, read his rights, and then hours and days later, detectives are squeezing him in an attempt to elicit cooperation in the interrogation room? I don't mean to suggest that Hollywood depictions are useful (when it comes to intel, they're quite the opposite -- see "24"), but it's routine for detectives (and that's essentially what these FBI interrogators are) to interview and extract information from suspects long after they've been read their rights.
I simply do not understand the outrage from an intelligence-gathering perspective. It's a bit absurd at this point, particularly when new information keeps coming out demonstrating the success the FBI had in this matter. Now, I guess the only recourse left is to claim that the FBI "lucked out" after the fact. It's a lame argument.
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