The Danger of Treating War As a Criminal Matter... to Criminal Rights

I glossed over this in my last post, but I would like to reiterate something I said over a decade ago when the World Trade Center was still smoldering.  I was in a class with Gary Hart of all people.  Yes, that Gary Hart.

And the debate was about whether we can declare war on what is in essence a terrorist organization.   I was in favor and I made many legalistic arguments, but you always make policy arguments after the legal arguments, especially at this school, and I made this point I am about to make now.

When you try to treat something that is best treated as war as a matter of criminal law, you inevitably warp the criminal law, too.  After all, treating it as a matter of criminal law is less efficient, less effective.

And so the temptation is to stretch the law to be more efficient.  For instance, right now we believe we have killed or captured all the men who left the bombs at the Boston Marathon.  But are we sure we have gotten all the bombs?  Are we sure we have all the co-conspirators?  Well, obviously, we must find out, and if we read him those pesky Miranda rights, which tell him that he has a right to remain silent, then he just might shut up!

Indeed under the Miranda regime, once he says he wants a lawyer, all questioning must stop until they get him one.  And then who knows how that lawyer might interfere.  Plus, lawyers create their own problems, such as intelligence leaks.  The Lynne Stewart case comes to mind.

So today we find out that Dzhokhar Tsarnaev has not been Mirandized.  Now of course the Miranda rights represent one of the more brazen creations of judicial activism.  I mean the Supreme Court came up with a script the cops have to say when they arrest him.  Where is this script written in the Constitution?  It isn’t there.  But on top of it, virtually all of it informs the defendant of rights he doesn’t actually have under the original constitution.  For instance, you have a right against self-incrimination, but only as a witness.  It says nothing about talking under questioning.  And you have a right to an attorney, but not a right to a free one.  That is a right they pulled out of their keisters on another day.  So they pulled out of their keisters a right to be informed of two other rights that they previously pulled out of their keisters.

You want to know how radical this is?  Prior to Miranda, telling a person they had a right to remain silent and anything they said could be used against you in trial would probably be considered unauthorized practice of law by the police.  They could literally have gotten in trouble for saying it depending on how broadly state authorities interpreted the term “practice of law.”  But because they didn’t say it to Ernesto Miranda, even though no court had previously required them to say it, Mr. Miranda got his get-out-of-jail free card.

But there are lots of people who think it is good policy.  Maybe so, but they know this policy is built on a foundation of sand.  It was something imposed upon the people by the courts, rather than something we agreed to and voted on.  It is not even something that our hallowed founders passed down.  It’s just something a bunch of old men in robes imposed on us because they thought it was a good idea.

The point is if you like Miranda, you know it is not robust.  You know it’s sandy foundation would be in danger of eroding.  And the War on Terror will apply a firehose to it.

So the FBI has got Dzhokhar Tsarnaev in the hospital.  And the FBI says they are not mirandizing him that they are invoking the public safety exception.

The ACLU is horrified.  From their website:

Every criminal defendant is entitled to be read Miranda rights. The public safety exception should be read narrowly. It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule. Additionally, every criminal defendant has a right to be brought before a judge and to have access to counsel. We must not waver from our tried-and-true justice system, even in the most difficult of times. Denial of rights is un-American and will only make it harder to obtain fair convictions.

The public safety exception comes from New York v. Quarles.  In that case a woman claimed to have been raped by a man with a gun.  She said when he left her, she saw him enter a market.  The cops went in there, tracked him down and in the chase lost sight of him for a moment.  When they found him and cuffed him, they saw he had an empty shoulder holster.  The arresting officer asked him where the gun was, and the defendant indicated it was in some empty cartons where it was recovered.  The question was whether his statement indicating where the gun was, and the gun itself would be admitted into evidence at trial.  If Miranda applied ordinarily, it wouldn’t.

In that case, the Supreme Court recognized that the danger to public justified the exception.  As the Court observed:

So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.

It is far from clear that the public safety exception would apply in this case.  First, that was a pretty short period of time for the exception and the evidence that there was a danger was pretty solid.  His alleged victim said he had a gun.  He had an empty holster.  It seems utterly reasonable to think there might have been a gun in it recently.

By comparison the public safety concern is real but less urgent in this case.  There might be additional conspirators we don’t know about yet.  There might even be additional bombs.  But I doubt we can have any certainty about that.  I mean I suppose if they found ten boxes that used to hold pressure cookers and they could only account for six of them, that would be similar to an “empty holster” situation, but otherwise it’s hard to imagine that the FBI will have good reason to believe there are more bombs or conspirators unless Dzhokhar tell them about them.

But there is reason to think that the courts might expand the exception.  Examine this reasoning in Quarles:

Here, had Miranda warnings deterred Quarles from responding to Officer Kraft's question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area.

We conclude 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.

In other words, if the only issue was conviction at trial, Miranda would apply.  But given that there was this additional concern for public safety, Miranda does not apply.  And thus you can see exactly how the Supreme Court might write an opinion further expanding Quarles to apply to this situation.  It is explicit policy making.  It is explicit balancing.  And the temptation to give the officers more leeway may be overwhelming.

“Ah, so what?” you might say.  And if you don’t like Miranda and other criminal rights then this outcome won’t bother you overly much.  But the problem criminal rights advocates will have is that this precedent will be applied to all cases, not just to terrorism cases.  As one justice wrote in a wholly different context:

The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.”

So if you care about Miranda, the last thing you should want is for it to apply to men like Dzhokhar.  Barack Obama will want a conviction.  He will want to prove that criminal trials for terrorists can work.  Nothing would undermine that goal more than if the defendant “lawyered up” right now so he or Holder almost certainly ordered the agents not to Mirandize him and maybe even deny him access to counsel.  We can be reasonably sure these agents are not doing a thing without cabinet-level, if not Presidential, approval.  So he is not getting his Miranda rights, and it is uncertain whether he will at any time in the future.

And who knows what other forms of duress might be applied.  Threats to deport family members perhaps?  Threats to place the defendant in a prison where his life would be in danger, or he would just be regularly violated?  Who knows?  The temptation will be to get results and due process be damned.

And then after they do whatever they did, they will go to the court and ask them not to throw out the evidence.  And the courts will be tempted not to let this guy go.  He (allegedly) killed four people and wounded dozens of others.  He terrorized an entire city.  So they will be tempted to rationalize the constitution or the case law to allow whatever the FBI did to be treated as legal, or at least not as a fatal impediment to the case.

And the precedent would be set, and applied next not to a terrorist but some guy merely charged with robbery.

So if you care about criminal rights, the answer is to treat him as an enemy combatant.  American citizens can be treated as combatants.  Ask Robert E. Lee or the thousands of Confederates held in POW camps without any trial.  Treat him as an enemy combatant and interrogate him as the dishonorable combatant he is.  You don’t want to waterboard him?  Fine, but don’t give him a lawyer during the interrogation, either.  Isolate him away from the criminal justice system and then the way he is treated sets no precedent for ordinary criminal law.

For if we keep this in the criminal justice system, it will be a cancer that will inevitably erode the rights affording to criminals.  While I am highly critical of Miranda, there are criminal rights I do care about.  And someday this process will endanger them, too.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.