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May 9th, 2010

Mirandizing Terrorists?

terroristWritten by Nathan Tucker

The recent botched Time’s Square bombing and subsequent arrest of the would-be-bomber Faisal Shahzad as he was about to leave the country has once again renewed the debate over what rights, if any, suspected terrorists are entitled to. Are they entitled to Miranda warnings? Do they have a right to an attorney? Should they be tried in civilian courts or military tribunals?

In this case, the Justice Department opted to initially interrogate Shahzad without reading him his Miranda warnings under the public safety exception to the Miranda requirement. It was only after they determined that there were no other “ticking bombs” that the FBI read Shahzad his Miranda rights. Shahzad, who will be tried in civilian courts, opted to continue cooperating with investigators.

Like the Christmas Day bomber before him, the Justice Department’s decision to Mirandize Shahzad and try him as a civilian prompted criticism by Republicans. Many urged the Obama administration to detain, at least initially, Shahzad as an enemy combatant in order to obtain as much information from him as possible without Mirandizing him.

Unlike the Christmas Day bomber, however, Shahzad is a United States citizen, had been residing in the country, and was detained before leaving the country for a crime committed while in the United States. As a result, the Supreme Court, under its current case law, would all but assuredly have ruled that Shahzad was entitled to Miranda warnings before his statements could be used against him in court.

Lost in the recent discussion over whether federal agents should be required to Mirandize terrorists, regardless of their citizenship, is any debate over whether Miranda itself is constitutional. When the decision came down in 1966, it was widely denounced as another example of liberal policymaking by the Warren Court that had no basis in the Constitution itself.

President Nixon successfully campaigned on the issue in 1968, vowing to nominate judges who would follow the Constitution rather than engage in freewheeling policy debates. The federal Omnibus Crime Control and Safe Streets Act of 1968 was enacted to specifically overrule the Miranda decision, though the Department of Justice never attempted to rely on it.

Sadly, the furor over the Court’s ruling in Miranda has died down to a whimper, if that. Shortly after taking the bench, the late Chief Justice William Rehnquist argued in Michigan v. Tucker (1974) that he regarded the Miranda warnings as “procedural safeguards” that are “not themselves rights protected by the Constitution.”

However, when the Supreme Court finally had the opportunity to overrule Miranda in 2000, Rehnquist wrote the majority opinion in Dickerson v. United States that upheld the warnings because they had become embedded in routine police practice. Only Justices Scalia and Thomas dissented, arguing that, as the Court itself has held throughout the years, bad precedent does not become good law simply by becoming old bad precedent.

Miranda, should not be considered settled constitutional law, and the question over whether terrorists are entitled to Miranda warnings can be simply solved by overruling the decision. As a matter of public policy, the decision, as the Miranda dissenters pointed out, will “negate all pressures, [will] reinforce the nervous or ignorant suspect, and ultimately [will] discourage any confessions at all. The aim in short is toward ‘voluntariness’ in a utopian sense.”

As a matter of constitutional law, the dissenters noted that the new warnings have no “support in the history of the privilege [against self-incrimination] or in the language of the Fifth Amendment.” The Fifth Amendment guarantees that no person “shall be compelled in any criminal case to be a witness against himself,” which traditionally was understood to simply mean that no one could be forced to provide involuntary, incriminating testimony against himself in a criminal proceeding.

Miranda does not become “settled law” simply by being repeated ad nauseam on Law and Order. In overruling it, the Court can make it easier for law enforcement officers to interrogate suspected terrorists without worrying about the possible inadmissibility of any confessions obtained simply because they failed to read the warnings.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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