An e-mail from an experienced prosecutor:
There is an aspect to this debate that is being wholly overlooked, and this aspect 100% undermines the proposition that it was “right” or
“necessary” to Mirandize Abdulmutallab once he was taken into custody.[# More #]
Before I get to that point, there is one small collateral fact that has been overlooked in distinguishing him from Padilla –I realized
this when reading the transcript of your chat with Isikoff on Tuesday — Abdulmutallab was a foreign visitor arriving on an international flight. He did not –and probably still has not– been granted permission to enter this country. All arrivals on international flights have to clear Customs and immigration at the port of entry,
and be permitted to enter by Customs and Immigration. Abdulmutallab could have been denied entry in Detroit, which would make him
demonstrably different from a US citizen like Padilla who was seized in the US, raising constitutional question as to the legality of his
designation as an enemy combatant. For purposes of designation, Abdulmutallab was seized while still not yet admitted to the US so he could have been sent directly to military detention without raising the same issue as was raised in the Padilla case.
Now, for my more significant point — Miranda.
Lost in the discussion — at least the discussions that I have heard and read — is the purpose of Miranda, and why it should have been
inapplicable in Detroit given the purpose of the interrogation.
Miranda is a check against the potential for police abuse in the form of eliciting uncounseled incriminatory statements from a person while
in custody, where those statements are later sought to be introduced in a trial to establish that person’s guilt. This aspect of the “right to counsel” is covered by the Fifth Amendment right to not be compelled to be a witness against yourself.
So, the “right” is to not be a “witness” against yourself in the form of making an uncounseled admission. The corollary of that
proposition is that there is no “right” to have an attorney with you any time the government wishes to speak with you.
You do have such a right if the government will seek to use your statement in a later proceeding to deny you of your liberty.
But if that is not the purpose for which the statement is sought, there is not need to advise a subject of either the right to remain silent or the right to have an attorney present.
What possible purpose could there have been to interviewing Abdulmutallab in order to gain admissions which could be later used to
deprive him of his liberty??
What could he possibly say that would have made the government’s legal case against him stronger?? He flash-fried his genitals while
attempting to detonate a PETN explosive device while aboard an commercial airliner heading for Detroit. IF there was ever a case where a couple pictures would be worth many thousands of words, this is the case. How would a “confession” have made it better than it
already was? It wouldn’t. And that means there was no purpose to Mirandizing him from the standpoint of a criminal prosecution — it
was tantamount to simply “piling on.”
Now, if you have no interest in using whatever statement he might give down the line in a prosecution, there is no need to Mirandize him, as the purpose for which the Miranda rule was adopted is not present. He has no 5th Amendment right to the presence of counsel or to remain silent when the info being solicited is for intelligence purposes only. While he might expose himself to other criminal charges during
that interview, and as a result of having not Mirandized him the gov’t may not be able to use his statement againts him with respect to other
such crimes, but so what? The purpose of the interrogation is not to secure a conviction — it is to obtain the intelligence necessary to disrupt ongoing AQ operations.
There is nothing inconsistent with his rights under the 5th or 6th Amendments in questioning him without Mirandizing him and without
giving him access to an attorney — so long as it is understood going in to any such interrogation that any statements he might give could not be used against him in a subsequent trial.
The left is possessed by this notion that ANYONE must be given access to an attorney ANYTIME the are the subject of law enforcement scrutiny or a request to talk. That is simply not the case now under the law, or historically.