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November 20, 2009
Terrorist Defendants and (No) Miranda Rights
It appears that no Guantanamo detainees, including those who will be tried in a New York civilian court, were given their Miranda rights, nor were their "normal Fourth Amendment rights" observed. This is a sincere request: can someone provide a legal scenario in which all five of these cases are not thrown out on that basis alone in the first ten minutes of the trial?
Even as this potentially fatal flaw in the case against five men accused of carrying out acts of terror against the United States is highlighted with urgency and consternation, both Attorney General Eric Holder and Speaker Nancy Pelosi declined to uphold the Miranda rights of Osama bin Laden.
Well, let’s see, how many years has it been? Nine, eight years. Let’s worry about capturing Bin Laden and not worry about your, your question.
Again I'm not -- that all depends. I mean, the notion that we --
Let's look at this.
Is there any doubt that AG Holder and Speaker Pelosi would wish to try Osama bin Laden in a civilian court? So why would they not acknowledge one of the fundamental rights of a defendant in that venue? Is it that such defendants are entitled to a civilian trial but not all of the attendant rights? But then, wouldn't that be a show trial instead of a showcase of the American justice system?
Or does this arise out of a more base and self-protective concern; namely, that they fear being hooted out of the room at the mere suggestion of proffering Miranda and Fourth Amendment rights to the self-avowed mastermind of the 911 attacks?
Lindsey Graham, not my favorite senator, had it right yesterday.
The only point I’m making (is) that if we’re going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court.
Including the substantive procedural flaws that inevitably attend the transition of a detainee from a war zone, in a larger or stricter sense, to a civilian courtroom. It is not at all clear that the Obama Justice Department took a careful accounting of these flaws and their implications to justice before undertaking this transition.
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I agree with everything you say (except I like Lindsey Graham). There's a chance that their cases aren't harmed by the Miranda problem, if the Feds have enough evidence without the various confessions.
I think there's a very good chance this turns into a disaster; if not in the courtroom, then at least on the battlefield. It sets some pretty strange precedent. I am holding out hope, though, that this is some super-secret super-smart plan by the Obama Administration to get Bin Laden. I can envision a scenario where he sees that if he were to voluntarily turn himself in now he could get a public platform (in the form of a civilian trial) rather than a swift execution, which could appeal to his ego. Since he isn't likely to get that kind of deal from any sane President, he should jump at the chance now. In return, Obama would get a good chance at reelection and a better pullout scenario for Afghanistan.
As far as I can tell, that's the best possible outcome, but I'm not sure it's worth it.
Posted by: Mario at November 20, 2009 6:24 AMI share Monique's concerns. So far as I know the rules of procedure in Federal criminal trials are well established, and grant the defendants a number of rights. The exercise of these rights may be the source of some embrarrassment to the government.
One of these rights is "discovery", the defendant is entitled to know the evidence that will be used against him, its nature and sources. I can imagine a number of instances where this would have to be denied. Such denials will give the impression that "the fix is in" and it is simply a show trial. We frequently denied rights at Nuremberg. However, the proceedings weren't televised and the public was less sophisticated.
I also worry about the "unintended consequences". These are rarely publicized, and rarely quantified. It is the belief of many that harsh penalties increase the number of dead victims in kidnappings and "third strike" crimes. Only a fool would leave witnesses.
Unimaginable as it seems, suppose the proposed defendants "walk". Then let us suppose a lieutenant with a rifle company succeeds in the capture of a "name" terrorist. Is he going to send him back to the sates for trial? I think he is going to give him a "field interrogation" and then punch his ticket.
Posted by: Warrington Faust at November 20, 2009 10:05 AM