Right-Wing Media Don't Understand The Effect Of Mirandizing Terror Suspects

››› ››› MEAGAN HATCHER-MAYS

On June 15, the United States apprehended the individual suspected of leading the terrorist attack on the American diplomatic compound in Benghazi, Libya, transferred him to a U.S. naval ship, and ultimately arraigned him in federal court in Washington, D.C. on June 28. Since his capture, right-wing media have repeatedly complained that the suspect was not entitled to Miranda warnings or due process.

Khatalla Was Mirandized And Arraigned In U.S. Court

Washington Post: Ahmed Abu Khattala Was "Told Of His Miranda Rights" Before Being Arraigned. According to the Washington Post, Khattala was initially questioned on the USS New York without having first been read his Miranda warnings. However, federal agents did read him those rights before he was arraigned in a Washington, D.C. federal court on June 28:

Ahmed Abu Khattala, a suspected ringleader of the 2012 attacks in Benghazi, Libya, that killed a U.S. ambassador and three other Americans, was brought Saturday from a Navy warship to the federal courthouse in the District of Columbia, where he entered a plea of not guilty to a single conspiracy charge.

[...]

Abu Khattala is the first of the alleged perpetrators to be apprehended in the Sept. 11, 2012, attacks on the U.S. mission in Benghazi. He faces criminal charges in the deaths of the U.S. ambassador to Libya, J. Christopher Stevens, and the three other Americans. Stevens was the first U.S. ambassador to be killed in the line of duty in more than three decades.

According to a law enforcement official, Abu Khattala was questioned during the journey from the Mediterranean Sea aboard the USS New York, an amphibious transport dock. "There were conversations," the official said. The ship's movements were a well-guarded secret, and all of its outbound communications were blacked out for security.

As of a few days after his June 15 capture, Abu Khattala had not been informed of his Miranda rights to remain silent and be represented by an attorney, under a "public safety" exception to those constitutional rights, according to several U.S. officials. But on Saturday, two law enforcement officials said that Abu Khattala had been told of his Miranda rights "days ago" and continued talking with investigators afterward. [Washington Post, 6/28/14]

Right-Wing Media Misinformed On The Effect Of Due Process For Khattala Before He Was Arraigned...

Fox News Host Mike Huckabee: "It's A Mistake To Treat Him As a Citizen Because He Isn't One." Appearing on Your World With Neil Cavuto, former Arkansas Governor and current Fox News host Mike Huckabee objected to the idea of affording Khattala due process rights, arguing that he didn't deserve constitutional protections because he wasn't a U.S. citizen on American soil. [Your World With Neil Cavuto, Fox News, 6/27/14]

Fox News Contributor Peter Hegseth: Khattala Will "Lawyer Up" After Being Read His Miranda Rights And "We Don't Get The Intelligence We Need." Appearing on Fox News' Outnumbered, contributor Peter Hegseth argued that if Khattala were given his Miranda warnings, he would "clam up" and jeopardize the United States' ability to gather intelligence. [Fox News, Outnumbered6/17/14]

Fox News Contributor Charles Krauthammer: "You Don't Want To Ever Give This Guy His Miranda Rights." Columnist and Fox News contributor Charles Krauthammer also argued that it would be a "mistake" to read Khattala his Miranda rights because "intelligence, it trumps justice" and doing so would impede the government's efforts to "get all the intelligence that we can." [Fox News, Special Report with Bret Baier, 6/17/14]

...And After He Landed In The United States

The Five's Eric Bolling: "The Minute He Hit Land Here, He Lawyered Up." On the July 2 edition of Fox News' The Five, co-host Eric Bolling argued that because Khattala was arrested and brought to the United States for arraignment, law enforcement was unable to obtain intelligence "that could save some lives." [The Five, Fox News, 7/2/14]

The Five's Kimberly Guilfoyle: Arraigning Khatalla Is "Not Legally Justified." Guilfoyle complained that affording the suspect due process in criminal court was "nonsensical" and he should instead be held "indefinitely." [The Five, Fox News, 7/2/14]

But Courts Have Held That Non-Citizens Arrested Overseas Are Entitled To Due Process And Miranda Warnings

Second Circuit Court of Appeals: Miranda Warnings Apply To "Statements Made Overseas." The purpose of Miranda warnings is to inform arrestees not only of their rights under the Fifth Amendment, but to deter law enforcement from using coercive tactics that might cause self-incriminating evidence to be inadmissible in court. According to the Second Circuit, to the extent that Miranda warnings work as a deterrent, "it does not matter whether the defendant is a U.S. citizen or a foreign national" or whether his statements were made in America or overseas:

[T]he Fifth Amendment's privilege against self-incrimination ... governs the admissibility of evidence at U.S. trials, not the conduct of U.S. agents investigating criminal activity. For this reason, it naturally follows that, regardless of the origin -- i.e., domestic or foreign -- of a statement, it cannot be admitted at trial in the United States if the statement was "compelled." Similarly, it does not matter whether the defendant is a U.S. citizen or a foreign national:  "no person" tried in the civilian courts of the United States can be compelled "to be a witness against himself."

While the Supreme Court has not been called upon to state this latter principle explicitly, it has held that the Fifth Amendment's right to due process of law applies equally to U.S. citizens and foreign nationals present in the United States, even those here unlawfully. We see no basis to consign the "fundamental trial right" of a defendant to be free of compelled self-incrimination. Indeed, the principles animating the privilege against self-incrimination apply with equal force to both citizens and foreigners who are haled into our courts to answer criminal charges.

[...]

Having determined that the Fifth Amendment right against self-incrimination governs the admissibility at trial of statements made overseas, we turn to the related question of Miranda's applicability to overseas interrogations conducted by U.S. agents. The Supreme Court has not ruled on this particular question, but it has held that the framework established by "Miranda govern[s] the admissibility of statements made during custodial interrogation in both state and federal courts." Proceeding on the assumption that the Miranda framework generally governs the admissibility of statements obtained overseas by U.S. agents, we conclude that the application of that framework to overseas interrogations may differ from its domestic application, depending on local circumstances, in keeping with the context-specific nature of the Miranda rule.

[...]

Undergirding these guidelines are two objectives:  "trustworthiness and deterrence." By "adequately and effectively appris[ing] [a suspect] of his rights" and reassuring the suspect that "the exercise of those rights must be fully honored," the Miranda warnings "combat the pressures" inherent in custodial interrogations. In so doing, they enhance the trustworthiness of any statements that may be elicited during an interrogation. With respect to deterrence, the Court has explained that, "[b]y refusing to admit evidence gained as a result of [willful or negligent] conduct [depriving the defendant of a right], the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused." Thus, courts suppress un-warned statements, even those that may otherwise be voluntary and trustworthy, in order to deter future misconduct by law enforcement agents.

[...]

When U.S. law enforcement agents or officials are involved in overseas interrogation ... the deterrence rationale retains its force. [Second Circuit Court of Appeals, In re Terrorist Bombings of U.S. Embassies, 11/24/08]

Law Enforcement Can Interrogate Suspects With Or Without Miranda

George Washington University Law Professor Orin Kerr: "It Is Legal For The Government To...Intentionally Violate Miranda." According to Professor Kerr, the government may still interrogate a suspect whether or not he has been Mirandized. Supreme Court precedent has held that "a person's Miranda rights are violated only if the statement is admitted in court":

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, 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. 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. 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. [The Volokh Conspiracy, 4/20/13]

Yale Law Professor Akhil Reed Amar: "The Fifth Amendment Will Never Have Been Violated" Unless Prosecutors Introduce Unwarned Statements At Trial. As Professor Amar explained, investigators are free to continue questioning suspects like Khattala without Mirandizing them. Fifth Amendment rights are implicated only if the government tries to admit his unwarned statements during trial:

This isn't about when or whether [a suspect] should be read his Miranda rights. He already knows them. So does almost every American -- we have all in effect been read the standard warnings countless times, by cop shows that have taught us our basic Fifth and Sixth Amendment entitlements. So what's the big deal if [a] suspect in any single case, doesn't get the benefit of this fetishized ritual?

Also, the Supreme Court has allowed cops to delay the formal catechism in situations involving an imminent risk to public safety. Any suspect in custody can be asked, "Where's the gun?" or "Where's the bomb?" Even if the public safety exception somehow doesn't apply following the Boston tragedy, the only thing the cops would lose if they fail to give Tsarnaev his Miranda warning is the confession itself, so long as the police are acting in good faith. In Boston there is plenty of evidence to convict independent of any confession, and surely the government has acted in good faith.

[...]

Our law rightly safeguards against convicting the innocent and tries to structure criminal trials to minimize this risk. A criminal defendant is under special emotional pressure and may end up hurting his own case, even if he is testifying truthfully. He may stutter or sweat or misremember or misspeak or get confused when verbally sliced and diced on the stand by a clever prosecutor. So at trial we don't allow the prosecutor to force the defendant to take the stand. Likewise, we don't allow the government to force a suspect in the police station to answer questions, and then allow those answers to be introduced at trial. Otherwise, our carefully designed safeguards could be undone pretrial, in the police station.

But as long as the precise words and testimony elicited in a police interrogation are never introduced in a criminal trial, the Fifth Amendment will never have been violated. The defendant will never have been made an involuntary witness in his own criminal case. [Slate, 4/22/13]

Brookings Institution Senior Fellow Benjamin Wittes: "Unwarned Interrogation" Has Always Been An Option For Law Enforcement. Law enforcement agents are allowed to question a suspect without Mirandizing him if public safety is at risk, pursuant to the 1984 Supreme Court decision in New York v. Quarles. According to Wittes, the FBI's 2011 Miranda memo outlines their wide latitude to delay informing a suspect of his rights in the event of a threat to public safety:

The executive branch, of course, cannot change constitutional law, but the new guidance gives agents a maximalist account of their possible latitude under Quarles, which held that "there is a 'public safety' exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence" and 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."

Under the new guidance, the FBI interprets this opinion -- which was given in the context of a brief delay in Mirandizing a suspect to secure his gun in the immediate aftermath of a rape -- to authorize relatively protracted questioning of high-value or operational terrorist suspects about rather more than just ticking bombs. "If applicable," the memo reads, "agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights" (emphasis added). While if there is time, the agents should consult with FBI headquarters and the Justice Department on deferring Miranda, "the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to ensure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed." In other words, they are fully empowered to act on their own in deferring Miranda.

[...]

The second significant thing in the document is the process it creates for those "exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continuing unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat" and that they are willing to forgo using the statements against the suspect in court. In such situations, the memo instructs, agents need to receive approval from the special agent in charge and, "whenever feasible," the SAC must consult first with the Justice Department and FBI headquarters before proceeding.

This option, of course, was always available to the bureau -- as was exploiting the public safety exception. [Lawfare Blog, 3/25/11]

Giving Terrorism Suspects Due Process And Their Miranda Warnings Does Not Necessarily Cause Them To "Clam Up"

New York Times: Terrorism Suspect Gave Authorities "An Intelligence Watershed" After Being Read His Miranda Rights. After the United States arrested an Al Qaeda leader named Nazih Abdul-Hamed al-Ruqai in Libya, the Times explained in a Q & A how his interrogation would likely employ the same techniques used against the terrorist suspect Ahmed Abdulkadir Warsame, who acted as a liaison between Al Qaeda and a Somalian militant group. Warsame was ultimately Mirandized, but he was nonetheless highly cooperative and provided the U.S. government with what one prosecutor called "an intelligence watershed":

Q. What will happen next?

A. If the Obama administration follows the model it set in 2011 in the case of a Somali man, Ahmed Abdulkadir Warsame, after the intelligence interrogation is finished, it will give Mr. Ruqai a break of several days, allow the Red Cross to visit him and send in a "clean team" of fresh F.B.I. interrogators who have not been briefed on what he said to the interrogation group. The new team will read him a Miranda warning, including whether he waives his right to be questioned with a lawyer present, then ask him a new round of questions intended to gather evidence that could more clearly be used against him in court.

Mr. Ruqai is likely to be transferred to the Southern District of New York, where he has been indicted on conspiracy charges stemming from the 1998 embassy bombings in Africa. The same court was used for several other defendants in that conspiracy. Mr. Ruqai's case is part of the same series of indictments on which the government prosecuted Ahmed Khalfan Ghailani, the first Guantánamo detainee to be tried in the federal system, and on which two others suspected of being Qaeda operatives were extradited from Britain last year and are now facing trial.

Q. How did the Warsame case play out?

A. Mr. Warsame is described by the government as a former military commander with the Shabab in Somalia, the group that carried out the recent attack on a Nairobi shopping mall. He also acted as a liaison with Al Qaeda's branch in Yemen, the authorities say, and was captured by the United States in the Gulf of Aden in April 2011. The government has said that he was questioned aboard a Navy ship for intelligence purposes for about two months, without being advised of his Miranda rights or given a lawyer. After a break of four days, the authorities say, he was advised of his rights, waived them and then spoke for about seven days to law enforcement agents. Prosecutors have said that he waived his Miranda rights at the start of each day during that questioning.

Q. Was the information he provided useful?

A. There is little question why the authorities see the Warsame case as a model. After his shipboard interrogations, he was brought to Manhattan and arraigned in federal court in July 2011; five months later, he entered a secret guilty plea and became a cooperating witness. He then met weekly, for hours at a time, with the authorities, disclosing what he knew and being available to testify as a prosecution witness against another Shabab defendant charged in Manhattan, a step that became unnecessary when the defendant pleaded guilty. In March, when Mr. Warsame's plea deal was unsealed in court, Preet Bharara, the United States attorney for the Southern District of New York, said the case had provided "an intelligence watershed." [New York Times, 10/8/13]

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