Miranda on the field of battle

A few days ago a story came out that the Department of Justice, which includes the FBI, and which has to some extent taken over battlefield interrogations from the CIA, was Mirandizing battlefield captives the way “suspects” are Mirandized in America.

To say this is a stunning development, if true, is an understatement. It’s not that basic constitutional rights have not been given to foreign military prisoners before, because they have, particularly with respect to a series of cases since 9/11. But, those cases concerned the bare minimum due process standards for the prisoners.

Due process (whatever that means – but, at a minimum it means knowing what you are charged with, having a meaningful opportunity to defend yourself and a basic sense of “fair play”) has been around since the Constitution in America and in other forms in England for hundreds of years. It is arguably, a human right. There is no definition in the constitution of what it means and there have been many arguments about it. But, whether or not you agree that enemy prisoners have these rights, due process has a long history with tremendous bona fides and is one the few defendant’s rights mentioned in the constitution. And by few, I mean really very few.

Here are the basic criminal constitutional rights:

- prohibition of unreasonable searches and seizures and general requirement that a warrant be issued first upon probably cause.
- Right to a jury trial, at least for felonies (nowadays, if there’s the possibility of jail, you have the right).
- Right to counsel.
- Right not to self incriminate.
- Right to bail (not necessarily the states).
- Right to a grand jury for felonies (not necessarily the states although they all do).
- Right against double jeopardy (being charged again after convicted).
- Right to due process of law (a very vague term that seems to incorporate everything else in many judges viewpoint).
- No ex post facto crimes (criminalizing an act after the fact).
- No bills of attainder (a legislative act in lieu of being charged and convicted of a crime).
- protection against cruel and unusual punishment.

Many of these rights were greatly expanded this past century particularly during the Warren Court days in the 1960s. One should also remember that most of the individual rights contained in the constitution, particularly those in the bill of rights, applied only against the federal government and the states were free to ignore them until this past century the Supreme Court started finding that those deemed “fundamental” applied against the states as well through the due process clause in the 14th amendment.

But Miranda v. Arizona, the 1966 Supreme Court case that transformed law enforcement in this country, doesn’t seem to be required by the constitution at all, at least at face value. It has only tentatively something to do with a right not to self incriminate and more to do with making the government the defendant’s advisor. How it will now apply to foreign fighters is a good question.

I presume readers all know what “Mirandizing” someone means. The government has to tell a prisoner his rights before they interrogate him or the confession is thrown out. But there are some things about Miranda you probably didn’t know and that’s what your handy dandy constitutional law blogger here is for. After this post, you’ll know more than you wanted to about Miranda and the cases that led up to it and be able to shock antagonists at the proverbial cocktail party (I'm pretty sure I've never been to a cocktail party - have you?)

With all the discussion of torture to get confessions of foreign fighters, it is sometimes forgotten that it used to be the way they got the confessions in America from regular citizens not so long ago, within the lifetime of our older citizens. Only in 1936, just a few years before WWII, the Supreme Court got around to finding that confessions obtained by whipping and hanging violated the concept of due process in a case called Brown v. Mississippi (I’ll give the case names in case anyone cares). This was a murder case involving some black defendants and white victims where the methods of extracting confessions was so revolting, I didn’t even read them to my criminal procedure class a few years back when we were covering it. I mention the color of the defendants, because so many of these cases involved black defendants and white victims. The only evidence supporting the Brown conviction was the confession and, probably, the justices were so revolted by what the police did to him, they took the big step which seems so obvious now and ruled due process (again, whatever that means) doesn’t allow you to force a man to confess by torture.

In 1944, the Supreme Court heard a case about a man who tried to get away with having his wife murdered by an accomplice (who had already confessed) and he lasted for over 36 hours of interrogation without cracking, until, inevitably, he did. This case, Ashcraft v. Tennessee, produced an interesting dissent from legendary judge, Robert Jackson, who was also our chief prosecutor at the Nuremburg trials a couple of years later. He pointed out that Ashcraft never asked for a lawyer, that credible witnesses (a doctor, a bank president and the president of Coca Cola (no kidding)) were present at the interrogation and watched him having breakfast and appearing fine after 3 days of interrogation. Ashcraft never complained about the interrogation and didn’t claim his confession was involuntary in any way. He claimed that he never confessed, although clearly he did. Jackson’s point was it shouldn’t be automatic to find a tough interrogation unlawful and that it didn’t necessarily produce an involuntary or false confession. Police interrogation was and is the best way to get the conviction of some really evil people, and we shouldn’t throw the baby out with bathwater because some police officers went too far. Jackson wondered out loud in his dissent if the courts were heading in the direction that all post arrest interrogations were illegal.

His concern was absolutely right, of course, although he was two decades early. Justice Hugo Black, who wrote the opinion for the majority in Ashcraft, seemed to hint that all secret interrogations were, in fact, unlawful, the very thing Jackson was concerned about, and even, Un-American. He wrote as follows:

“The Constitution of the United States stands as a bar against the conviction of an individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the constitution remains the basic law of our republic, America will not have that kind of government”.

* * *

“In reaching our conclusion as to the validity of Ashcraft's confession, we do not resolve any of the disputed questions of fact relating to the details of what transpired within the confession chamber of the jail or whether Ashcraft actually did confess. Such disputes, we may say, are an inescapable consequence of secret inquisitorial practices. And always evidence concerning the inner details of secret inquisitions is weighted against an accused, particularly where, as here, he is charged with a brutal crime, or where, as in many other cases, his supposed offense bears relation to an unpopular economic, political, or religious cause.”

Black and a majority thought that an interrogation such as this is automatically deemed compelled. No doubt, sleepless has a tremendous effect on a person, and, can lead to false confessions? Does anyone doubt this? It is kind of hard, in America at least, to argue that coerced confessions should be admissible, particularly looking back in time as we can now. But, when you remember that it did not appear that Ashcraft had been mishandled at all, was Jackson right, or was a day and a half of interrogation enough alone to find coercion (remember, his co-conspirator had already confessed)? The court was taking from police their most powerful tool to protective the ordinary innocent civilian from the monsters out there? What about Mrs. Ashcraft? Didn’t she deserve justice too? I note as well that the opinion was very light on precedent. Black could point to few cases at all to support his position. And everytime I think, of course that confession should be thrown out, I remember that three witnesses said that Ashcraft didn’t seem fazed at all.

In Chambers v. Florida (1954) this concept of due process was expanded. Four black defendants (up to 40 black men were initially arrested for the crime), were convicted of killing a white man. There confessions came after sleep deprivation while they were kept from any contact with lawyers or friends and under terrifying conditions (allegedly for their protection). They finally confessed and won their case.

Justice Black again wrote for the Warren Court. He had had a tough time earlier in his career when it was revealed that he was a Ku Klux Klan member in his youth. Chambers transformed him into a civil rights icon. He was proud of his authorship of the opinion which included these words:

“Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution--of whatever race, creed or persuasion.”

Fine words, and no doubt applicable to that case. I should add that in his time Justice Black stood alone among high court justices in believing that the due process clause of the 14th amendment to the constitution was a short way of saying that all of the first eight of the bill of rights, mostly those rights I listed above, were automatically applicable against the states. I couldn’t agree less and it seems not only illogical to suggest that the framers of that amendment couldn’t use the extra few words to actually say that, but, no doubt, the 14th amendment was trying to tell Southern states that they had to play fair with black defendants and nothing more. It is now a moot point, as through another route, finding that most of these rights were “fundamental,” and were applied that way through “due process”. There is little more logic to that route than Black’s, but it has developed as the law of the land, starting back early in the century when Babe Ruth was still playing ball, and I for one am glad for it, regardless of what it did to the Constitution, which had already been, and continues to be, mangled by the court.

As these due process rights of avoiding secret interrogations were being expanded by the courts, so also was the rights of the poor to have a lawyer, starting with the Scottsboro Boys cases, wherein a group of young black men, who won a fight on a train against some whites, were accused or rape of white woman, kept away from lawyers until the trial that they were rushed through, and, of course convicted. There’s a long and sad history to these cases (9 defendants and twice up to the Supreme Court), and they played out over a couple of decades. There isn’t room to go into them here (maybe someday), but, in general, after that, at least uneducated indigents in America facing capital punishment had a right to an appointed lawyer and in time to do some good for him – not just as trial was starting. Like other “rights” found to apply against the states, the right to counsel has been greatly expanded since then, famously in the Gideon v. Wainwright case in 1963, and certainly now anyone charged with a felony or even a lesser crime if there is a possibility of jail, has the right to counsel.

There are many cases that led up to the Miranda ruling, the three most important being from 1964: Massiah v. U.S. (police couldn’t use co-conspirator to trick Massiah into giving a secretly recorded confession at a supposedly secret meeting without his lawyer present), Escobedo v. Illinois (when Escobedo asked for a lawyer and was denied the right, the subsequent confession was not admissible) and, Malloy v. Hogan, which made the fifthamendment protection against self incrimination applicable against the States. These three cases (and the 1963 Gideon case) set the table for Miranda.

Although the beneficiaries of all these cases were often blacks being railroaded (whether guilty or not), the full development of the law led to these benefits being applied to everyone. And, as with Miranda, there was fairly exuberant opposition all the way.

In the hundreds of cases that had come up on appeal since that triumvirate of cases in 1964, the court singled out four such cases, one of which was the title case, Miranda v. Arizona two years later. Chief Justice Warren, the former governor of California, wrote the opinion of the court from which four of the nine judges abstained. But, although Justice Warren mentioned that Miranda was “a seriously disturbed individual with pronounced sexual fantasies,” we have to go to Justice Harlan’s dissent to even find out what Miranda was supposed to have done and how the police handled him:

“On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on the morning of March 13, petitioner Miranda was arrested and taken to the police station. At this time, Miranda was 23 years old, indigent, and educated to the extent of completing half the ninth grade. He had "an emotional illness" of the schizophrenic type, according to the doctor who eventually examined him; the doctor's report also stated that Miranda was "alert and oriented as to time, place, and person," intelligent within normal limits, competent to stand trial, and sane within the legal definition. At the police station, the victim picked Miranda out of a lineup, and two officers then took him into a separate room to interrogate him, starting about 11:30 a.m. Though at first denying his guilt, within a short time, Miranda gave a detailed oral confession, and then wrote out in his own hand and signed a brief statement admitting and describing the crime. All this was accomplished in two hours or less, without any force, threats or promises, and -- I will assume this, though the record is uncertain . . . without any effective warnings at all."

There was no doubt where Warren stood from the opening words of his opinion:

“The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.”

Warren seemed to finally confirm Justice Jackson’s fears over twenty years earlier by holding that all interrogations done in secret were at least inherently suspicious, picking up where Justice Black left off:

“Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented . . . Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.”

Reading from a police interrogation manual, Warren made much of the psychological tricks the police used to trick or coerce prisoners. He admitted that the confessions obtained this way might not “traditionally” be found to be coercive. No beatings, no threats.

Although relying on the Escobedo case extensively, Warren rested Miranda on the fifth amendment right not to incriminate oneself rather than the sixth amendment right to counsel that the court had used two years earlier. It no was no longer required that the suspect had asked for a lawyer and was rejected to throw out the confession – the police now had to tell him he had the right to one, among other rights which Warren summarized for us as follows:

“[W]e hold that, when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

Justice Warren knew that at least the most persuasive argument against this bold new rule was that it was more in society’s interest to allow the secret interrogations than to prevent them. To this he made two counter-arguments; first, that the power of the government had to take a back seat to the constitution, here the fifth amendment; and secondly, he quoted another legendary Justice, Louis Brandeis, who once observed in a fourth amendment case, Olmstead v. U.S., in 1928:

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fail to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."

Four of the other judges were not pleased. Justice Thomas Clark dissented, writing that he believed the court had overstated the coercive aspects of actual police practices (there was nothing in the record from even one actual interrogation; just a manual of which the record was silent whether even one police department followed), that this new rule “may well kill the patient” (interrogations) and that the due process rule that there could not be compulsory or involuntary confessions was the better of the two.

Justice John Harlan was less gentle. He wrote:

“The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward “voluntariness” in a utopian sense, or to view it from a different angle, voluntariness with a vengeance.”

He complained that Warren's authority relied not on fifth amendment “self-incrimination” cases, which the court had held was being violated, but on sixth amendment “right to counsel” cases, which he believed had nothing to do with interrogations. The rule against self-incrimination, he claimed, did not mean that "no" pressure could be brought upon a suspect, no matter how gently done.

Justice Byron “Whizzer” White also wrote a dissent, complaining essentially that the court had created a new rule out of thin air; that is, there was no precedent for it. He didn’t seem to mind that a rule which held that a defendant must be told that he may remain silent, but pointed out the absurdity that an accused might blurt out a confession before he was read his rights and interrogated, which even Warren admitted was allowable, but that a suspect who was told he had a right to remain silent (but not the other rights) couldn’t even be asked “Do you have anything to say” or “Did you kill your wife?” Is that really compulsion?

Whether or not you agree with the rationale, 5 judges outweigh 4 and Miranda became the rule. The conservative branch of the Supreme Court has managed to limit the application of the rule in some cases, but, in 2000, a judge as conservative as William Rehnquist wrote the opinion in Dickerson v. U.S., that Miranda was a constitutional rule and as precedent, could not be overturned even by the act of congress that sought to modify it. I recall being surprised nine years ago to read some of Rehnquist’s basis for his opinion, as they seemed very un-Rehnquistlike, he being well known to have a preference for arguments favoring the prosecution and disfavoring civil rights:

“. . . Miranda has become embedded in routine police practice to the point where the warnings have become a part of our national culture. [W]e have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, [but] we do not believe that this has happened to the Miranda decision.”

Justice Scalia and Thomas, even to the right of Rehnquist, argued that what the court’s decision “will stand for, whether the Justices can bring themselves to say it or not, is the power of the Supreme Court to write a prophylactic, extraconstitutional Constitution, binding on Congress and the States.”

Scalia, of course, raised a whole other issue, which I will deftly avoid here, but it is central to the question at least as old as Plato - whether the people shall rule themselves (i.e., democratically), or, will elite unelected leaders make our decisions for us (Plato liked the second choice). I freely admit I love some judge made rules and laws that I actually believe to be unconstitutional, and Miranda is among them. I was influenced long ago by a case I had where a young man was accused by an ex-girlfriend’s family of swerving his car towards him. The police picked him up and while he was sitting in the back seat of their car, they asked him if he was trying to kill them or just trying to scare them? He later told me he thought he had to pick one and, naturally, chose scare them. I hardly believed that every client I had was innocent, but I was fairly sure he was (and, indeed, his case ended up being voluntary dismissal by the prosecution). However, as much as I acknowledge my fondness for some of these policies, I also recognize that it is a dangerous precedent, as Scalia always points out. The next time we might not like these judge made rules. But, actually, that ship has long sailed, as judicial policy making takes place all the time from judges on the right and the left.

Thus, it appears that Miranda is here to stay, and, it hasn’t seemed to stop the governments from obtaining their usual high conviction rate. However, those are for cases actually brought. How many guilty murderers, rapists, arsonists, etc., would have confessed if they didn’t think to ask for a lawyer or to remain silent in a Mirandaless world? How many other victims would have been saved their own horrors or death, if those criminals were in jail? A few years ago a friend of mine was burglarized at the cost of between $20-30,000. A young woman caught on tape hocking her jewels turned her accomplice, who lived next door to my friend. The police said that they asked her if she was involved and she denied doing it, although it seemed pretty obvious she did. But, it was also clear that the police could not truly interrogate her as they might have had there been a different result in Miranda. Is that just or fair? On the other hand, you might take some solace in learning that Miranda himself was retried without the confession and convicted anyway.

And now, finally, I come to the issue I started with, now that you can see how constitutionally weak Miranda is (whether you like the policy or not), the slim thread by which it gained a majority, and the reasonable arguments on the other side. If it’s true that soldiers or combatants on the battlefield are being Mirandized, where are we going with this? Does the administration mean to suggest that those fighting against us in a war have the same constitutional rights as American citizens arrested in America do? Or that they are worried that the courts will rule they have them and they want to be prepared? It’s hard to understand why else this would they would make this our policy.

It lends itself to the arguments of the right that the left in general and Obama in particular do not understand our enemies, foreign policy or war. It is reminiscent of a policy from the Clinton error which rendered our intelligence services far weaker than before, when agents were no longer allowed to consort (and thereby gain intelligence from) some disreputable characters. It more than allows those who have not been Mirandized to claim that since they weren’t, their confessions are now out the window. Indeed, how can the administration credibly say that they all didn’t need to be read their rights? And, if that’s so, what about search and seizure without a warrant, right to jury trials, etc. This is not a slippery slope argument. It’s a simple legal argument that the most ignorant third year law student could make.

All countries recognize that there is a huge difference between criminal law and the law of war. While it might even be manageable (although wrongheaded) to Mirandize an occasional captive, imagine a war with prisoners in number like in World War II or even the Iraq War. Should Saddam Hussein been told he could remain silent, that he could have a lawyer present, etc.? Will all of these indigent fighters be entitled to lawyers at American cost too? Moreover, the “fog of war” will certainly spread a thick curtain over these warnings and there may often be no may to prove that the warning was given. The soldier who gave the warning might be dead or unable to appear in court when a hearing occurs. How many of these Miranda hearings are we prepared to do? Thousands? In a big war, millions? Won’t each prisoner care to test it?

For my part, I hope this all turns out to be a right wing nightmare (or rumor) and not true at all.