The statement at issue:
“A foreign member of al Qaeda should never be treated like a common criminal and should never hear the words ‘you have a right to remain silent.’ ”
– Joint statement of Republican Senators Kelly Ayotte of New Hampshire, Lindsey Graham of South Carolina, and John McCain of Arizona, quoted in The Washington Post on March 31, in an article by reporter Peter Finn, titled “Somali’s case a template for U.S.” The three senators made such a comment twice in March when the U.S. government revealed it had brought foreign nationals suspected of terrorism to the U.S. for prosecution in a civilian court.
We checked the Constitution, and…Almost a dozen years since the terrorist attacks on the United States on September 11, 2001, it is an open question which of the rights protected by the Constitution apply to those captured or prosecuted as terrorism suspects. The military detention system set up at Guantanamo Bay right after those attacks was understood then, and that remains true today, precisely to limit the rights of those held in detention. The same is true of those prosecuted by military commissions at Guantanamo.
The practical reality, however, is that the federal government has had far more success getting guilty verdicts against terrorist suspects captured overseas since 9/11 in civilian court than in the war crimes commissions; the score so far is 67 to 7 (and two of those seven war crimes verdicts have been overturned on appeal). What a guilty verdict does is to take an individual out of circulation, perhaps for the rest of that person’s life, and the thorny legal and moral question of long-term detention without criminal charges does not arise.
And federal government officials understand that, if they are going to take a terrorism case into a civilian court, they had better be prepared to prove to the court that the evidence of a war crime was not tainted because it was gathered in an unconstitutional way. One almost certain way to turn a criminal trial in the accused's favor is to forfeit a chance to use evidence that was obtained by coercion--that is, by getting a suspect to talk without knowing the legal peril of confessing.
That is why a captured suspect will be given “Miranda warnings”--that is, will be told about the rights they have, such as a right to remain silent, that are mandated by the Supreme Court’s 1966 decision in Miranda v. Arizona.
That mandate is now constitutionally required under the Fifth Amendment, according to a decision in 2000 in the case of Dickerson v. U.S. In that decision, the court remarked: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."
About Constitution Check
- In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.
The Supreme Court has not yet had a chance to say, in a post-9/11 terrorism case, whether “Miranda warnings” do apply to foreign nationals captured abroad in a terrorism investigation. But when the Justice Department opts for a prosecution in civilian court, it proceeds on the premise that the Fifth Amendment literally applies to “any person,” protecting that individual from being compelled to be a “witness against himself.”
Beyond the Miranda warnings issue, there is a long tradition in America that military trials should not go forward when the civilian courts are open and operating, even during wartime. That was clearly established by the Supreme Court’s 1866 decision in the case of Ex parte Milligan. Whether that precedent governs during a “war on terrorism” apparently is still open to debate, however.
Official Washington is now clearly divided over what to do with terrorism suspects. Majorities in Congress continue to pass laws that are intended to restrict the executive branch’s power to use the civilian courts for terrorism prosecutions. The aim is to have all foreign nationals seized by the U.S. on suspicion of terrorism to be taken to Guantanamo Bay, and to be held there for the duration of the terrorism conflict, or, as the only alternative, prosecuted for war crimes in a military commission, with far fewer rights than apply in a civilian court.
The opposition to civilian trials includes a fervent objection to giving Miranda warnings to suspects, on the theory that doing so will cause suspects to stop talking, thus depriving the U.S. government of valuable intelligence about terrorist operations, past and future.
As the three Republican senators said in one of their statements in March objecting to civilian prosecution of al Qaeda suspects: “When we place [these] individuals in our civilian legal system, read them Miranda rights, and focus on prosecution rather than intelligence collection, we miss valuable information that will prevent future attacks.”
Administration officials, however, counter that they have found ways to gather intelligence and then prepare an individual for civilian trial by giving Miranda warnings. First, they conduct extensive interrogation of an individual in the days or weeks after initial capture. Then, they will bring in an FBI interrogation team--a group supposedly told nothing at all about what the suspect said during questioning--and that team reads the individual the warnings about rights. If, as seems to have happened in some of these cases, the individual waives those rights and goes on talking, then the government appears to have it both ways.
It is unclear at this point how all of this is going to be sorted out in the long run. But, for the time being, the government is getting the verdicts it wants in civilian courts, while the Guantanamo war crimes machinery continues to struggle its way toward effectiveness and real results.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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