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Bypassing Miranda

“You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney . . . .” Most people can finish that paragraph even if they have never taken a legal course, been a police officer, or have never been arrested. The Supreme Court held in Miranda v. Arizona and upheld numerous times since then that the Miranda warnings are required.[1] One’s rights to remain silent and have an attorney can be waived, but waiver must be made knowingly, voluntarily and intelligently.[2] The Court has even held that Miranda is a rule required by the Constitution and Congress cannot modify or set aside any judicially created rules of evidence and procedure that are required by the Constitution.[3] There are, of course, exceptions to the requirements of Miranda, such as public safety.[4] But in the public safety exception is supposed to only be used in emergency situations when the immediacy of the circumstances requires that information be gained in order avert imminent danger.

The public safety exception has been used by the Obama Administration to postpone warning terrorism suspects of their rights and bring them into court on charges of their crimes. One such example of this is the case of Mansour J. Arbabsair. Mr. Arbabsair is accused of conspiring with the Iranian government to hire assassins from a Mexican drug cartel to kill the Saudi ambassador to the United States in September 2011.[5] The government claimed that during his 12-day custody he voluntarily waived his rights, repeatedly signing waivers each day.[6] The administration claimed that it could delay the Miranda warnings in the interest of public safety without having to suppress the statements.[7] This includes an un-Mirandized statement he made before going into surgery. Though the details of his mental state and capacity to even give a statement before an operation remain unclear the circumstances are suspect. A delay of twelve days in order to read a two-minute paragraph? That hardly seems like “immediate” circumstances. Even if Mr. Arbabsair did effectively waive his rights and confess to the crime that he is accused of masterminding, neighbors and acquaintances say that the man they knew simply did not seem capable of such a complex and internationally coordinated attack. [8] Several people have said that he did not fit the profile not only because he was not a radical zealot but also because he was often disheveled, disorganized, and incapable of having the time, organization or diligence required to carry out the attack.[9] To sum it up, Mr. Arbarsair was apparently next to incapable of even attempting to carry out the crime, there was a delay in giving him the Miranda warnings and taking him before a judge and he repeatedly waived his rights in the 12 days he was in custody. Mr. Arbabsair has lost his motion to suppress the statements and has now pled guilty.[10]

Another way around Miranda that is currently being explored in the courts is a hybrid of “dirty” or un-Mirandized confessions and “clean” or Mirandized confessions.[11] The idea is that a person who is in custody is interrogated without Miranda warnings and then re-interrogated after being given Miranda warnings.[12] The objective of tactic is to have the suspect, who has already confessed to crimes under illegal interrogation, to reiterate his/her original statements after having been Mirandized. If this sounds backhanded it is because it is. After all, if you had already been coerced into incriminating yourself during the first interrogation what would stop the government from using that information against you regardless of what you said or what rights you invoked during the second? The harm is already done because you have already told them, you might as well just waive your rights and hope that the interrogation sessions will end. This is precisely the method that is being tested in the case of Mohammed Ibrahim Ahmed who was indicted in New York on giving material support to a Somali terrorist group, Al Shabab.[13] Mr. Ahmed was held in Nigeria and had been interrogated by U.S. officials without being read his rights and then a few months later the FBI sought to re-interrogate him this time “cleanly” so that his statements could be used in court.[14] Even if the interrogations are at different times and places, and even assuming that the suspect did knowingly and intelligently waive his/her rights what is actually evidence from the “dirty” interview versus the “clean” interview is suspicious at best.

With the passing of the 2012 The National Defense Authorization Act (NDAA) the issue of Miranda as it relates to terrorism suspects may be a moot point due to the indefinite detention clause under Section 1021.[15] Section 1021 allows for the detention of anyone “engaged in hostilities against the United States or its coalition partners . . . without trial until the end of hostilities.”[16] This sounds familiar because it is. In 2001 in response to the 9/11 attacks, the Authorization to Use Military Force (AUMF) authorizes the President to use “all necessary and appropriate force” against those responsible for the September 11th attacks.[17] The NDAA expands on this premise by allowing anyone suspected of terrorism to be detained and detained indefinitely, not just those who have ties to al Qaeda. President Obama’s signing statement included a small disclaimer, “the [NDAA] does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”[18] Even if this administration promises not to detain without trial there is no guarantee that future administrations would do the same.[19] The broad-sweeping language of the NDAA may make any disputes about Mirandizing terrorism suspects a non-issue. After all, why even worry about someone’s rights, waiver, coercion, or admissibility of his/her statements if he/she will just be detained indefinitely? The only limitation in the NDAA is that detention is “until the end of hostilities” language. Having been at war for a decade, the end of hostilities seems a long time to wait to speak to your lawyer or have your day in court.


[1] Miranda v. Arizona 384 US 436 (1966)

[2] Miranda v. Arizona 384 US 436 (1966)

[3] Dickerson v. U.S. 530 US 428 (2000)

[4] NY v. Quarles 467 US 649 (1984)

















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