Caution: Clarity of statement may make truth closer than it appears.
“Do you understand these rights as I have explained(not given) them to you?”

I’m going to explain this to you very slowly and I won’t use any big words, so listen up:

You might also want to remind them to put on their “thinking caps.” I doubt it will help, but I suppose it doesn’t hurt to ask…

It’s really very simple.
Thanks Cynthia, you make it clear.

Who was that Drinking, smoking comic that said: “When I was arrested one time, the Cop told me” ‘I had the right to remain silent’,”but I didn’t have the a b i l i t y.

Chuck Todd seems to know about pop culture than government, so he ought to remember this from “Police Academy 2″:

Mahoney (Steve Guttenberg): “You have the right to remain silent. The right to a court-appointed attorney. You have the right to sing the blues. You have the right to cable TV. You have the right to sublet. You have the right to paint the walls. No loud colors.”

When the plane landed, Abdulmutallab was taken to a hospital for treatment; at Holder’s directive, he was arrested as a criminal suspect. (The F.B.I., the C.I.A., and the Pentagon signed off on Holder’s decision.) F.B.I. agents questioned Abdulmutallab for some fifty minutes, under what is known as the “public-safety exception” to the right to remain silent. He divulged time-sensitive intelligence: he had been trained in Yemen, by affiliates of Al Qaeda, and had obtained explosives from them. After he received medical treatment, a Justice Department source said, he started to “act like a jihadi and recite the Koran.” He stopped coöperating and demanded a lawyer, at which point authorities read him his rights.
Read more: http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer?currentPage=all#ixzz0fQt81mTb

Bold is mine. He stopped cooperating BEFORE they read him his rights. He already knew that he was entitled to a lawyer.

Getting those rights and not being treated like he was going to be shipped off to a black site, convinced his parents to pressure him to cooperate.

And he is cooperating.

Sooooooo

Miranda warning did NOT stop the cooperation.

Miranda warning, and other humane treatment, induced resumption of cooperation.

Miranda is not the problem, it’s the solution.

…their “thinking caps.”

picturing the little beanies with the propeller on top…

Conservatives like to bring up the “Mirandizing terrorists” issue because they know that their brethren don’t like it even for American citizens.

Miranda warning did NOT stop the cooperation.

If I had a toasted crotch, I would probably not be in much of a mood to talk either.

Something else the part of the Constitution that SCOTUS relied upon when deciding the Miranda case does not say “no citizen shall be” it says “no PERSON shall be” [emphasis mine]

So, whether or not the arrestee is a citizen is completely irrelevant to this analysis. if you are a person, and you are arrested here, you have these rights and are required to be reminded of them. Period.

Did they lawyer up that Boothe guy?

But…but…but! Then only guilty people have rights!

/wingnut

Tom Terrific

Supposedly he DID TALK for just under an hour and gave the FBI actionable intel. Then, I guess he remembered he was supposed to be some bad ass terrorist guy who could resist all torture and started reciting the Koran an and asked for a lawyer.

That’s the point where the interrogation stopped. They were no longer getting anything useful PLUS he asked for a lawyer, which legally means interrogation stops until a lawyer gets in the room.

Oh, gee whiz, did we forget that his lawyer is ALLOWING his continued interrogation?

LOL

Since a lot of the acrimony we see over politics is driven by this consistent misstatement of basic facts, perhaps there ought to be some sort of “three strikes and you’re out” law that could apply to talking heads who continually spread BS… hold the pony.

I wonder if Chuck Todd was read his miranda rights he would stop talking?

You have the right to remain soylent.

From WaPo

Although Sessions and others have recommended that terrorism suspects arrested on U.S. soil be immediately put into military custody, such an action could take place only if the suspects are found to be enemy combatants.
Law enforcement officials, however, say putting terrorism suspects arrested on U.S. soil immediately into military custody is not as easy as it sounds.
“It’s a military decision, and a complicated one when the arrest is in the U.S.,” said one government attorney, who was not authorized to speak on the record. A suspect has to be a member of al-Qaeda or linked to a terrorist group associated with al-Qaeda under the legal approach used by the Bush administration, and that has not been tested in court.

spotlight to tweety now.

Thank you for this blogpost. The absolute willful stupidity of the media in sitting like turkeys with their mouths up wide open while the likes of Cheney and all the other fearmongers deliberately spin their drivel like a shitstorm is downright appalling.

and spotlight to Jonathan Karl for his interview tomorrow with Cheney. But I hold out no hope.

Dystopian future…we’re livin’ it.

‘Barney, read him his rights.” “Oh Ange, Otis knows ‘em by now.” “Yep, He has been here a right smart bunch o’ times.”

It seems they basically have a problem with giving people rights at all. The Miranda warning is just a constant reminder and irritant to them.

The courtesy of slow, ‘big words’-free explanations is, perhaps wasted on the benighted sorts that needs it the most.
They don’t want the America that has been built painstakingly through law and reason…They want an America rampaging triumphantly forever over the enemies that are invented for its consumption.

Interesting how so many people find giving others a reminder of rights given by the Constitution is supposed to be offensive. As you say, some seem to think that the reminder actually confers a right that wouldn’t exist otherwise. Of course, the other position is that by keeping an arrestee in the dark there is the chance to possibly trick information out of the person being arrested. Both attitudes have been heavily reinforced over the years by vacuous crime dramas like 24, and even Matlock, where we see the guilt proven long before the arrest or virtually inevitable conviction. The kind of certainty that can never exist in the real world.

Arguing about rights and why those rights exist to people that build their reality out of what they’ve seen in movies and on the TV probably requires that they first agree that entertainment is not reality. In some cases that would be very difficult indeed.

Reporter wearing thinking cap.

One of the things that kills me about those who oppose the reading of Miranda rights:

The reading of the rights is only a reminder of the rights you already have.

The reading of the rights does not CONFER those rights on you. You always had them.

Chenyites act like the reading of the rights is some kind of grant of power, it’s not.

It amazes me that these people are so willing to display such ignorance in such a public way.

As for the talking heads who mindlessly spout this stuff, don’t they know the route to their network’s General Counsel’s Office? Don’t they vet what they are going to say when they go out there presumptuously spouting legal opinions?

Arguing about rights and why those rights exist to people that build their reality out of what they’ve seen in movies and on the TV probably requires that they first agree that entertainment is not reality. In some cases that would be very difficult indeed.

Well that’s what happens when you put a college drop out like Cheney in charge of policy decisions one issues directly controlled by the Constitution.
He is such a forceful personality and surrounds himself with people who are so personally loyal to him (a/k/a yesmen) that even if he has really smart lawyers on staff, it is no help, because they use their training and intelligence to craft flimsy justifications for doing Constitutionally suspect acts instead of using those gifts to challenge dumb as dirt policy ideas coming out of Cheney’s warped brain..

The R minset is not about intelligence (they have none) nor information.

It’s the same attitude as ducking stools.

You are guilty if you float, and innocent if you drown, and we’ll have fun getting there.

It’s action as compensation for guilt.

It;s also a complete repudiation of the ideals of the constitution, complete, and a reflexive desire for a star chamber proceeding.

Based on the R’s oath of office, to protect the constitution, let’s call this behaviour what it is. Treason.

Obama, allegedly a constitutional law professor, doesn’t do any better than Cheney.

A lie is like shampoo: lather, rinse, repeat. Repeat, repeat, repeat.
It now look like truth because I know I’ve heard that before.

Cheney being a classic case of being a major fan of the alternate reality that exists in 24. That and perhaps a bit of overcompensation as a warmongering draft dodger.

‘undeclared combatant’ is not, I think defined in law Or not in good law.
Terrorism is legally a crime.
Criminals are not (outside of gangs0 considered to be heroes.

treat them as criminals, so they don’t get hero-points from their followers. Give them fair trials.
Don’t be surprised when a jury finds them guilty. Or not.
We have prisons (way more than we really should have) that can handle drug lords and serial killers. A convicted terrorist shouldn’t cause any trouble.

Why are we letting pissy-panted WATBs run our country?

Yes it’s all very simple. But here’s something else that’s simple as well.

The Anti-Miranda hysterics want one thing and one thing only — to torture people.

Shorter wingnuts and their ideological soul mates.

We like to torture brown people.

-G

Are you speaking of the Shadow Government Chief Cheney?(appointed)

I heard once that once you start lying, you have to continue, because if you stop people will figure out that you’ve been lying.
Also you have to remember what lies you told to whom; it’s a lot more work lying than it is just telling the truth in the first place.

Cynthia, I think the Cheneyites as well as others DO believe they are conferring rights. Not because they are stupid, but because they think they ARE the giver of law/rights.

I think this squares with the Unitary Exec theory (Only if you’re a Republican, and prefereably white) as well as their mindset that they themselves, giving the law, are above the law.

Is this the Fox News mission statement?

Constitutional, Schmonstitutional…

The other thing that gets me about these folks who are so busy talking tough:

The criminal justice system has successfully tried and convicted and sentenced to life MAJOR major terror figures like Abdel Rahman. The military commissions system, has only convicted 3 and two of them had such ridiculously short sentences (making reflecting how crappy the case was?) that THE TERRORISTS HAVE ALREADY FINISHED SERVING THEIR SENTENCES AND ARE BACK OUT IN THE WORLD.

If you want to be TOUGH on terror, you need to go with criminal trials. If you want the death penalty (which I do not favor), You have to go with criminal trials.

The real tough on terror approach is criminal trials. the chickenhawk military commissions approach molly coddles the terrorist with short prison sentences of only a few months.

do the Pathological Tango
“Oh what a tangled web we weave, when we first practice to deceive.

That and perhaps a bit of overcompensation as a warmongering draft dodger.

I thought that was the methodical shooting of strapped-down ducklings and the occasional lawyer while imbibing alcoholic beverages from the Koolatron on the tailgate…Cheney certainly created his own reality, however – One where Nixon rose to smite all his enemies (and some yet to be named or born) while remaking America to suit his corporate benefactors.

;>)

Fox Press of Freedom reported today the usual puffery we have come to know and love

Conservatives seem, generally speaking, to be the most virulent anti-constitutional movement in the country. It was fine to overturn the fourth amendment; getting rid of habeas corpus, no problem; to hell with Miranda, to hell with disallowing cruel and unusual punishment; to hell with everything except god and guns. Of course, God isn’t even mentioned in the Constitution, not a single time; hos sad, too bad, that guns are. Still, they are, so we socialists pretty much keep quiet on the matter, but find ourselves forever wondering why the hell Jefferson didn’t mandate SANITY as a precondition. Maybe next time.

Rabid criticism of Miranda is the equivalent of rabid criticism of the rule of law. I have no doubt, anymore, that conservatives detest the rule of law. The right wing invariably hates such constraint (1937-38 Germany anyone?) The rights of the individual, the well-being of the individual, are anathema to far right Fascist regimes. America is an inch away from proving the same yet one more time.

Also.

It’s hard to believe that Al Qaida would not tell real operatives about the law that allows them to ask for a lawyer. Remember that Bush-Cheney were constantly grumbling about how them terr’ists were using our own rights ‘agin us’. The problem is that if a lawyer is called in that lawyers main duty is to advise the client and that may produce results contrary to what AQ would want.

For example, in this case. Any lawyer would realize that the evidence was overwhelming against his client and that the one thing that could aggravate charges and sentence would be non-cooperation.

For example, in this case. Any lawyer would realize that the evidence was overwhelming against his client and that the one thing that could aggravate charges and sentence would be non-cooperation

And the one thing that could mitigate charges is to give high quality actionable intelligence to the FBI

While I have no where near your expertise on this issue, I have often thought that part of the reason for the difference in results has to do with resources. Within a military court the defense has almost as many resources as the prosecution and the defense is not dependent upon whether the defendant has sufficiently deep pockets. In a criminal trial the defendant is often seriously under resourced. All the more so when the FBI and DOJ step in the show. The primary exception being only for those people with real personal wealth or large corporations. A successful defense being a function of wealth in most cases and rarely because a big gun wants to massage their ego.

Arguing that a “terrorist” who is trying to murder an entire plane full of folks should be treated the same as a citizen who is caught in a fight with the spouse is a sure fire way to lose more seats in the Congress.

I live near Monticello and I have searched everywhere for the “SANITY CLAUSE”, there ain’t no SANITY CLAUSE!

I think the only explanation is something like this,

Brice Taylor:GHW Bush-PEDOPHILE
http://www.youtube.com/watch?v=G_c7JTADT_k

Hope you already had your breakfast, this will make normal people too angry to eat.

The exclusionary rule of Miranda has already been challenged. In United States vs Callandra (414 US 338 (1974), see Minnesota Law Review Vol 59 No 2 12/74), the court found that the exclusionary rule was not a constitutional gaurantee, rather it was a judicial remedey for unconstitutional behavior on the part of the Government. It was never meant as a free pass for guilty parties. The original idea was that if unconstitutional behavior nullified evidence acquired through that behavior the inconstitutional behavior would stop. It was never meant to let the guilty go free. The court in Callandra ruled that the evidence would stay in and that a new method for controlling police overreach would need to be devised. Callandra has never been used by defense or prosecutors to attack Miranda. Both side gain some political leverage by keeping it in place (see today’s article about Miranda stopping interrogation of underpants bomber). It is more useful to rant against than appeal in court.

there is no SANITY CLAUSE!

That’s what I told my cousins when I was five. Man did I get in trouble for that one.

Many thanks for this, Cynthia. As an old adviser was wont to remind his advisees, whether when wielding his blue, green and red correcting pens or chilling out at midnight over a spare pint of bourbon he kept on hand (for emergencies), “Always put your mind in motion before you put your mouth – or your pen – in gear.”

Sadly, cable news networks rarely do, even though they have access to all the top legal talent they could want. As Jon Stewart scathingly reminded Newt Gingrich last week, cable news networks, like Gingrich, never let reality interfere with a good story line.

As a former criminal defense attorney I can tell you that many defendants talk and talk even after their Miranda rights. What I cannot tell you is why?

Numerous cases are plead or tried with defendants statements to the police after Miranda. Many defendants rarely exercise their Miranda rights. Even when they claim that the asked for an attorney, most of the hearings on this issue are decided in favor of the state as the court finds the testimony of the police more credible than that of the defendant. The police rarely agree with the defendant’s assertion that he asked for an attorney and the police continued to question him in violation of his request.

And the reverse argument against a dozen top bank CEO’s would probably yield the reverse outcome. Neither is relevant to complying with the law, something that weak-reed Obama knows but doesn’t want to consider, but which Eric Holder should be beating Rahm Emanuel up with.

The rich may consider the law a plaything for their tax and criminal defense lawyers. It is the glue that either holds a civil society together or which lets its parts sheer off and tumble into broken pieces.

I guess I’m not understanding the argument of “declaring him an enemy combatant”. First off, you can’t declare someone to be a combatant, that requires a hearing. Second off, Detroit isn’t a region of armed conflict, much less a battlefield, so the term “combatant” makes little or no sense, since it is strictly a term that applies to international armed conflict. Third off, a detaining power is prohibited from any form of coercion in interrogating a combatant.

But more than that, the following are considered “fundamental guarantees” relevant to “elementary considerations of humanity” under international humanitarian law. I bolded the parts that are identical to those rights that gave rise to reading Miranda rights. I don’t see how declaring anyone an “enemy combatant” would change what they have a right to know before they answer questions.

3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be accused or convicted of a criminal offence on account or any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt;
(g) anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;
(i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and
(j) a convicted person shall be advised on conviction or his judicial and other remedies and of the time-limits within which they may be exercised.

(Article 75, 1st Additional Protocol, 1977)

Meaning we should be looking very carefully at those individuals who are trying to stop that.

What might they be trying to hide?

Thank you, Cynthia.

Why doesn’t Obama simply say what you have said, or Holder, or someone at the White House (excepting Rahm)?

Why?

DW

Bingo!

The bottom line.

True. It would be far better to strip him naked, tack him to a cross in the public square, then have bowls of stick pins and razor blades available so that people could choose the punishment that best suits their mood. Pincushion (with attendant screams), or maybe slice off little pieces of flesh, exposed members, stuff like that, to be tossed into a pail for use as, say, catfood. And listen to the screams. Teach him, alla dem, a LESson.

Unfortunately, we still officially remain, at least in name, a nation of law, a nation of civility — a nation where all are presumed INNOCENT until PROVEN guilty. And that includes terrorists, believe it or not, who are arrested on American soil. As well it should.

I should feel sorry, I suppose, for wingnuts whose mutilation instincts are disallowed. I don’t, though. My bad.

[modnote: while it is obvious you are being sarcastic, please try to avoid such graphic violent imagery, thank you.]

Arguing the other way means that you’ve lost any shot at the law applying impartially to everyone. And democracy is dead.

Do you really want a government that can declare anyone to be an ‘enemy combatant’ at any time, without proof, without any recourse in a court? Because that’s exactly what you’re arguing for.

Glenn Greenwald agrees with you:

[I]f one hears only the Government’s unchallenged, untested accusations about detainees and others whom it labels Terrorists and Enemy Combatants, it semes [sic] clear and obvious that the person is an Evil, Dangerous and Bad Man. But when those accusations are actually subjected to scrutiny by courts, it turns out that — in the overwhelming majority of cases — there is virtually no reliable evidence to support them. Even beyond those cases, Lawrence Wilkerson, former Chief of Staff to Colin Powell, had access to detainee files and revealed that a huge number of Guantanamo detainees — constantly accused of being the Worst of the Worst — were, in fact, completely innocent, as even the Bush administration came to acknowledge….[U]nlike in traditional (i.e., real) wars, where POWs are captured in uniform, as part of an army and on a battlefield, most of the people accused of being Terrorists and Enemy Combatants are captured far away from any battlefield: in their homes, walking on the street, at work, etc. The potential for both error and abuse (and thus the need for real safegurads [sic]) is radically greater.

I think Bush’s [Addington's] claim was that by inventing or abusing the notion of “illegal” enemy combatants, he could pixie dust away the rights of the detained and take them in Dick Cheney’s chariot to the dark side.

Nice job – good post.

I’ll play devils advocate a bit though – in essence there has been at various times in our jurisprudence a line drawn between the constitutional applications in a criminal law vs. an intelligence gathering situation. Hence the whole evolution of FISA and the FISA court, where something very different from probable cause to believe a criminal act has been committed “justified” the seizure of communications.

The bigger issue was that originally these different lines were being drawn under an “either or” approach – IF gov was acting SOLELY for intel gathering, it could, for example, take a very different 4th amendment approach than if it were gathering info for a criminal case. This is a part of the whys and wherefores of the dysfunctional – but not as stupid as it has been held out to be – “Wall”

So, without any real Congressional debate and definitely without any real judicial input, FISA has been revised and/or OLC has approved (as if their approval were judicially reveiwed legislation) activity that allowed the “intel” standard of collecing communications on much less than criminal probable cause to allow those communications to be used as fishing expedititions to try to GENERATE criminal probable cause or to try to support military/intel detentions with torture, interrogation, family hostage taking, etc. spin offs.

This has all happened without much comment – that legislation that at one time allowed an unprecedented, not Constitutionally supported concept of rifling through US communications on the tenuous basis of an intel gathering “exception” to the 4th amendment criminal probable cause and criminal warrant requirements (which should have already been subject to strong objections by Constitutional advocates) has, over the last several years, now gone tremendously further and also allowed for intel gathering to be utilized as an excuse for violation of the 4th amendment criminal probable cause requirment.

It’s really not such a far jump, after that, to make the arguments that we can publically “detain” persons and subject them to all kinds of extra-Constitutional *interrogation* based on a concept of “intel gathering”

If it is accceptable to legislatively avoid the 4th amendment and judicial review, using “intel gathering” (as revised FISA does) to allow search and seizure without criminal probable cause in order to boostrap and FIND criminal probable cause, then why isn’t is OK to avoid all the Miranda requirements under an “intel gathering” exception, and just go ahead and disappear people (with or without criminal probable cause – although the undie bomber would easily be a crim probable cause case) into torture interrogations, and then use the “Criminal Probable Cause” boostrapped from those interrogations into trial proceedings?

IOW – how do we justify the wall that came tubmling down in the FISA revisions and the OLC opinions that it was ok to use a speicious intel gathering “tag on” to searches and seizures that were primarily fishing expeditions to try to get criminal probable cause; w/o also justifying all manner of other bill of rights and constitutional violations under an “intel gathering” exception that allows, as FISA does now, extra-constitutional activities to take place under an “intel” exception, and then ALSO allows those “exceptional activities” to be used to make a criminal (or commissions) case?

At some point, despite how it was denigrated, you either opt in for a “wall” type concept or you opt out of the constitution as just something that can be gamed with the use of “intel gathering” exceptions.

And the thing that might keep parents from coming to the US authorities to start with to try to PREVENT their kids from getting too enmeshed in terrorist cliques to start with might be – claiming the “intel gather” right to disappear their children into torture.

CEO’s make decisions that lead to deaths every year. I don’t hear lawyers from Jones Day or Sullivan and Cromwell arguing that constitutional protections for their clients – even foreign nationals – should be dispensed with because of the harm these men and women cause in their pursuit of profits. Quite the opposite.

Insurance company CEO’s lay down rules that delay or avoid essential and covered necessary health procedures. Collectively, those lead to thousands of preventable deaths every year. Manufacturing CEO’s – most publicly Ford in the 1970′s with its Pinto gas tanks – make decisions about whether it is cheaper to fix their complex products or to pay for dead and injured customers. Drugs company CEO’s do the same with new products or the sale of old ones for new uses. Oil and coal company execs make decisions that lay waste the environment.

Other examples include trucking companies that game weak regulations and which mandate “rest” rules that eliminate rest, making traffic accidents more likely. Factory pig farms – which take up a good chunk of eastern North Carolina, make neighbors sick and neighborhoods uninhabitable. Factory fish processors and poultry and meat processors mandate “work and rest” rules that make on the job injuries far more likely and damaging to the bodies and minds of their workers. Ad nauseum.

The greater the potential for harm, the greater the likelihood that emotional reactions to it will blind us and make us ignore the facts and to seek vengeance, not justice. The body armor that protects us from such civil self-immolation is the law and due process. We take it off at our peril.

As for vengeance, the biblical admonition about an eye for an eye is meant as a limitation – not as a validation. It means take only an eye or a tooth, if that’s what was taken from you. Don’t take a life or a family or a whole village in an act of vendetta. Self-restraint is more powerful a tool of government than its absence, because it generates fairness and loyalty, instead of fleeting, guilty, animal pleasure.

But just talking to a suspect is not as macho as knocking them around a bit. Because knocking ‘em around shows them you’re a real man, and you know with all those lady executives America has lost its manhood. It’s Hillary’s fault.

Did I translate the dog whistle clearly enough so you won’t be surprised with future variations of this them. GOP=”real men” Democrat=you fill in the blank

This is very helpful, Cynthia. Thank you very much.

Forgive my excitement in dishing this out, because I just got to know this particular set of 4 words recently and am still awed by it, but the term “elementary considerations of humanity” is a term of art, and means in international law that such rights are enforceable against governments and individuals who abridge them regardless of whether or not they’ve signed whatever treaty. The specific designation is given to common Article 3 of the Geneva Conventions (Nicaragua v. U.S.A., 1986), and was first used in the Corfu Channel case (1949). The term “fundamental guarantees” refers to the fact that Article 75 (which I quoted) is considered customary international humanitarian law, enforceable regardless of ratifying that document, because it is considered to be the longer explication of what is meant by common Article 3.

The U.S., as you can see, was already ordered to pay reparations for this grave breaches to elementary considerations of humanity (the Reagan administration used the Security Council to block the court order from the ICJ). So it doesn’t really make a whit of difference what David Addington thinks, he should have stayed working at the fish and chips place.

One warning though: The conservatives also have an ulterior motive in this: John Roberts isn’t known for much else in constitutional law prior to his appointments except that he is a vehement opponent to Miranda.

Great post. You state so well:

A Miranda warning is merely a reminder of list of rights that an arrestee has. The person arrested ALREADY HAS THESE RIGHTS upon arrest. The reading of the warning does not confer the rights upon the arrestee

Miranda warnings are the new death panels. The most recent product of the noise machine. The point is to confuse and obfuscate, to hijack and foreclose any meaningful discussion of anything. It goes to show how debased our public discourse is. The onus is put on us to rebut every nutty, hypocritical, disingenuous attack. Our media not only doesn’t question and hold to account those who make baseless charges. They usually cheer them on. It’s good for ratings. And of course it distracts. Yet by even having to answer such attacks we give them a legitimacy they don’t deserve. The media hop on with “Well some people say this and other people say that” he said/she said. Thus equating the two –Instead of saying this is sane and this is horseshit. When I see stories like this, I go back to my idea that we live in the Age of Stupid. I am still grateful though that there are people like Cynthia who are willing to say things real slow and fight back against the tide of mindless, self-serving political blather in which we are drowning.

These primitives in and out of our government that defend all these abuses have no interest in the law, fairness, community or civilization. They are not even interested in obtaining useful information. They just want to do whatever they have the power to do. They believe the justification is in having that power.
.

I wish more people would stay awake in civics class. Thanks for the clear explanation, Cynthia.

There is basically in my view one distinction between a person being accused of a criminal act versus a terrorist act. In the second case you are allowed to torture that person into not remaining silent or for no reason at all.

It is the warranted permissability for torture that holds the attraction to those who hold out the option of classifying people as terrorists. It is the added gratification for these people to punish with torture those accused of terrorism.

It is this sadistic gratification that not surprisingly motivated Bush and other like minded sadists to have a free hand to torture and delved into it with relish.

Thanks for saying it better than I could.

Sounds like Ron White.

I do not understand how that is legal if the government and courts are open and operating; he was not captured on a “battlefield”.

Federal Public Defenders actually generally do superb work.

Well, Calandra is fairly distinguishable in that it pertained to use of tainted evidence in initial probable cause determination, i.e. grand jury; so I am not sure it has relevance here.

The other thing I would add is that Miranda is not absolute. The government can violate, it simply risks the exclusion of that evidence for a criminal prosecution. A result that is no fucking different whatsoever than would maintain if no Miranda was give. The blathering nincompoops, including seval Republican Senators that are lawyers, either do not understand Miranda for shit or they are lying. And, as Ondellete and others upstream noted, there is no battlefield and the courts and government of the US are open and operating normally; a US flagged airliner is US territory as is Detroit where he was formally detained. I simply do not see how this dude could be legally treated the way they want.

Bmaz is right, some of the finest lawyers I have seen are inthe Federal Defender Unit at Legal Aid. Just top notch

I simply do not see how this dude could be legally treated the way they want.

Trying him anywhere other than in a criminal court is likely going to result in a successful appeal by the defendant.

That’s the part that REALLY gets me.

One of the things I fear about “No Child Left Behind” is that it means “Civil rights education got left behind” and we are becoming a nation of civil rights ignoramuses, which would serve the interests of the neofascists just fine. We need to restore that course content in the schools!

Bob in AZ

Well, Ms. Kouril, I think it could be explained another way, with a little history. Because, in Miranda v Arizona, a confession was coerced from a defendant during “custodial interrogation” it was ruled by the U.S.S.Ct. that individuals in “custody” were Constitutionally entitled to be aware of such rights.

Wikipedia does it best: ” A Miranda warning is a warning given by police in the United States to criminal suspects in police custody, or in a custodial situation, before they are interrogated. A custodial situation is one in which the suspect’s freedom of movement is restrained (judged by the “free to leave” test), even if he is not under arrest. An elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of his/her “Miranda rights” and made a knowing, intelligent, and voluntary waiver of those rights. However, a 2004 Supreme Court ruling upheld state “stop-and-identify” laws, allowing police in those jurisdictions to require biographical information such as name, date of birth, and address, without arresting suspects or providing them Miranda warnings.
The Miranda warnings were mandated by the 1966 United States Supreme Court decision in the case of Miranda v. Arizona as a means of protecting a criminal suspect’s Fifth Amendment right to avoid coercive self-incrimination (see right to silence). The reading of the Miranda warning might be omitted during arrest, such as if the evidence is already sufficient to indict, or if the suspect is talkative and volunteers information (without being asked). The admissibility of conversations, as evidence, is judged on a case-by-case basis, subject to appeal.” ..just about sums it up. You were a sitting Judge in New York? A little diplomacy please, the audience you address is not simple, nor uneducated.

And you are not really addressing the compelling issues. The opposition, to application of human rights to all have been very overt that their reason for outrage at DOJ for giving the Christmas would be bomber ordinary rights is not any of those things you mention. They want him tortured.

NCLB certainly assures the military status greater than teachers in having access to underage students for recruiting activities on the school ground regardless of parental permission. That’s the only civics the right wing believes in.

They want him tortured…

They do, indeed. As much (if not more) for cover for their own support of ‘enhanced interrogation’ under Cheney, as for their bloodlust.

And that is how a nation loses its soul when what is initially seen by most to be a departure from morality. In choosing the course of “justification” rather than confession and remorse the layers of rot begin..

Great points damaged by an unnecessary “shut up.” Enlightenment is more effective than condescension. Share your knowledge rather than wield it.

You may not be simple or uneducated, but you clearly don’t know diddly squat about Miranda. I have a little experience with Miranda in legal arguments and personally knew the two men who represented Ernesto Miranda on appeal through the Supreme Court. I have no idea what you are trying to say with that simpleton quote from Wiki, but I assure you that Ms. Kouril is quite right in her assertions and you have not come even remotely close to demonstrating anything to the contrary

Thank you, Cynthia for the post and the recitation of the facts. I did not realize this was so cut and dried and I think of myself as educated. It looks to me like they worked close enough to the line to satisfy any hardliner and indeed they satisfied the Pentagon and the CIA so what exactly is the problem.

If it is so simple to cover the facts as you demonstrate why the hell can’t the President and the AG recite the facts on a daily basis until the lies are silenced??? That is apparently what we need. Even if such action were not ‘covered’ in the MSM it would at least educate the front line reporters.

In fact, “they” base their case denying Maher Arar (Canadian-Syrian, only because Syria does not allow its citizens to denounce their citizenship …) these rights on the fiction that he was never actually allowed to ‘enter’ the US and was in some kind of immigration limbo at JFK.