Mirandizing the Times Square bomber

Everything in the Times Square bomber case went as it should.  An alert bystander – an immigrant from a Muslim country, by the way – tipped off police to a suspicious circumstance. New York City police courageously and skillfully rendered the bomb harmless.  A suspect, Faisal Shazad, was apprehended before he could get out of the country. He was questioned by the FBI’s crack High Value Interrogation Group and, according to the government, provided valuable information both before and after he was informed of his constitutional right to remain silent.

Senators John McCain, Orrin Hatch and others nevertheless criticized the FBI for issuing the Miranda warning.  Evidently they have a principled objection to due process of law, even when it works.

The right to remain silent, guaranteed by the Fifth Amendment to the U.S. Constitution, is one of the most basic concepts of the Anglo-American tradition of liberty under law.  It was enshrined in the English Bill of Rights of the 1687 after a long struggle against absolute monarchs whose power was based on forced confessions and secret trials.

The Supreme Court decision in Miranda vs. Arizona came as a result a long history of abuses by American police.  People my age remember the expression “third degree” and what it meant. I don’t want to go back to that era.

Miranda vs. Arizona is not a “get out of jail free” card for criminal suspects.  It merely says that nobody can be convicted just on the basis of a confession unless there is assurance the confession was purely voluntary.

The FBI did not formally inform Shazad of his right to remain silent until after the questioning had proceeded for some time.  This is part of the “public safety exception” to the Miranda ruling.  The FBI can use the information it obtained in the first part of its questioning in its anti-terrorism work, but only the information used after the issuance of the Miranda warning can be used as evidence in the trial.

I don’t like making arguments in favor of basic constitutional rights on the basis that they really do no harm, because I can’t prove they do no harm.

Someday there will be another Muslim terrorist who will actually succeed, and that terrorist may refuse to talk to police.  Then we will face a choice as what we prefer – liberty or safety.  I would rather face the danger of terrorism, as other democratic countries do, that to surrender basic freedoms that have taken centuries to establish.

Click on this for commentary on Senator McCain’s statement.

Click on this for a law professor’s commentary on background to the Miranda ruling.

Click on this for another law professor’s commentary on the public safety exception to the Miranda ruling.

Click on this for a reminder that Aliou Niasse, who alerted authorities to the car bomb, was an immigrant from a Muslim country.

If we have racial profiling aimed at brown-skinned immigrants, as some advocate, wouldn’t people in his situation think it better to avoid all contact with police? But then again, I’m falling into the trap of defending human rights on the grounds of expediency.  Either you believe, as the Declaration of Independence asserts, that human beings have inalienable rights, or you don’t.

Click on this to see how it all came out. [Added 10/5/10]

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