Saturday, February 14, 2009

Mirandizing Terrorists?

"You have the right to remain silent..." That's a familiar catchphrase from cops-and-robbers pot-boilers on TV or in the movies. It is, of course, the opening line to the Miranda warning that police use to advise criminal suspects of their 5th Amendment rights. The U.S. Supreme Court mandated this advisory in the landmark 1966 Miranda vs. Arizona decision. As an aside, there is even a quasi-Miranda warning for debt collection: Under the Fair Debt Collection Practices Act, collection agencies and collection attorneys must advise debtors they are attempting to collect a debt in any communication with them.

But when we go down the road of giving enemy combatants and detainees the same constitutional rights as domestic criminals, unintended consequences emerge:
Accused in a 2002 grenade blast that wounded two U.S. soldiers near an Afghan market, Mohammed Jawad was sent as a youth to Guantanamo Bay. Now, under orders by President Obama, he could one day be among detainees whose fate is finally decided by a U.S. court.
But in a potential problem, Pentagon officials note that most of the evidence against Jawad comes from his own admissions. And neither he nor any other detainee at the U.S. prison at Guantanamo Bay, Cuba, was ever told about their rights against self-incrimination under U.S. law.
The Miranda warning, a fixture of American jurisprudence and staple of television cop shows, may also be one of a series of constructional hurdles standing between Obama's order to close the island prison and court trials on the mainland.
A procession of similar challenges -- secret evidence, information from foreign spy services and coerced statements -- also could spell trouble for prosecutors.
All of these problems illustrate the larger difficulty that lies ahead as the nation moves from the "law of war" orientation used by the Bush administration in dealing with detainees to the civilian legal approach preferred by Obama.