Friday, May 14, 2010


Our societal takeaway from the recent failed Times Square bombing attempt is a teensy bit troubling. Following an unbelievably amateurish effort to detonate explosives, Faisal Shahzad was arrested on an aircraft. He apparently was quite the chatterbox, 'fessin' up almost enthusiastically. As Shahzad is a citizen of the United States, he was informed of his Miranda rights...meaning his rights under the Constitution. He kept on talkin', as getting attention was probably his hope all along. Probably something to do with getting back at his father, I'd surmise.

No citizen can be forced to incriminate themselves, and every citizen has the right to legal counsel. This little list of rights has been hammered into our heads. As pretty much every American TV show that's not reality TV is a cop/legal/courtroom drama, the Miranda statement is something we're all familiar with.

It's a given.

Or was, if things roll the way they seem to be rolling. Right wingers are, as they always are, outraged that Shahzad was read his Miranda rights. He's a terrorist! He doesn't deserve his Miranda rights! He stopped being a citizen the moment he decided to Wage War On America! There's much huffing and posturing and indignation, resulting in the possibility that terror suspects who "pose an imminent threat" may no longer be Mirandized. This, we are told, is an extension of the public safety exception, which allows suspects to be detained and questioned without being informed of their rights. This stirs all sorts of thoughts, but two in particular:

First, I'm not sure what actually constitutes a "public safety exception." Strong evidence pointed to Shahzad's culpability, sure. But he wasn't in the process of setting off a bomb. He wasn't at the scene of a crime immediately after its commission. He was on an airplane, sitting on his behind. So here is a citizen, who is the primary suspect in an investigation. He is arrested. He is read his rights, which he may then choose to act on...or not. Reading his rights to him did not, in any way that I can see, negatively impact public safety.

Second, and more significant, there are the implications of applying a "public safety exception" to American citizens who are terror suspects. Yeah, nobody likes a terrorist. But if a citizen is suspected of being involved in or plotting a terror attack, revoking their rights as a citizen in the name of "public safety" seems a very dangerous precedent. The danger, quite frankly, not the removal of that little script. Rather, it is the threat that seems to pose to the rights that underlie Miranda. Let's fast forward eight years to the Palin/Cuccinelli Administration. If you or I were implicated as possible terrorists, should we be stripped of our rights as citizens? You know, rights like not being indefinitely detained? Or not being [cough] encouraged to incriminate ourselves during the process of that indefinite detention? Or having the right to counsel and a speedy trial?

My sense of this is that some on the law-and-order right would be perfectly happy to have this be the case. It's all in the interests of public safety, you know.


  1. Is it simply that they need not be informed of their rights or that their rights will be trammeled with impunity?

  2. @ newworld: That's an interesting question. The idea underlying this effort is that you don't want to allow suspected terrorists to shelter under their rights as citizens, when they could be providing usable intel in response to interrogation.

    If a citizen is suspected of posing a threat to public safety, at what point do their rights kick in? Our current system strongly implies: at the point at which they are physically detained. Miranda acts as something of a marker for this.

    Should you be detained and it is asserted that Miranda does not apply, what does that mean? If you're not a citizen, with the rights of a citizen, what are you?

  3. I am confused...

    Reading a person their rights does not protect the person, it protects the State.

    A person has rights. Taking a person's rights away while he or she is standing on American soil requires abolishing the constitution. Reading them their Miranda rights does not add or subtract to those rights.

    The rights are there always. People have the right of representation, and the right to remain silent, and the burden of proof of their guilt is always on the prosecution.

    If a person is not made clearly aware of their rights, then what they say can be viewed as having been extracted from them under coercion or false pretenses and may not be used against them in a court of law.

    But if they understand their rights and knowingly refuse a lawyer, and sing like a bird, then anything is fair.

    (the best answer when being read you Miranda rights when asked if you understand is to say 'huh?')

    The only advantage of not appraising a person of their rights is to not spook them in the hope that they will give valuable information about other people. But the price the State must pay is to release the subjects who were not Mirandized, because the case against them is now hopelessly compromised.

    That's the issue with the prisoners in Guantanamo. They can't be legally convicted and by holding them indefinitely the State commits a crime. A Human Rights violation. By definition.

    That is why the Bush administration appealed to creating a legal limbo with this term 'enemy combatant'.

    But in the past it was used to release POWs after a war regardless of how many Americans they had killed. Now it is just used to hold people in jail indefinitely without a trial.

  4. @ Jodie: You don't seem particularly confused to me...that's essentially correct.

    It's your observation that concerns me the most. Not reading Miranda is, for those pushing it, an indicator that the rights of a suspect are not those of a citizen.

    From there, the concern is the development of subcategories of folks who don't merit Constitutional protection, depending on the nature of the accusations against them.

  5. Could be they think that, but they would be wrong.

    See the Wikipedia article at

    The suspect's rights are constitutional rights. The Miranda warning is there to protect the prosecution, not the suspect. Getting rid of the Miranda warning would have the opposite effect they are looking for.

    What troubles me is that they seem to believe in magic. They seem to believe the State can tell the difference between innocent and guilty.

    In their hearts they want to get rid of the constitution that is there to protect them. They fail to understand that the reason we protect the rights of the guilty is in order to protect the rights of the innocent. They presume themselves to be innocent and fail to understand its their own rights they are trying to give up.

    I think that is what troubles you too. Fortunately they are so stupid that their proposed actions will have the opposite effect they are looking for, so all is well.