Monday, April 22, 2013

Terrorism and rights

Nate Silver has some statistics on public views on Mirandizing terrorists, and it's depressing (although I suppose not surprising). On this particular case, I don't want to comment too specifically except to just make a blanket statement that I obviously think Tsarnev should be accorded the full protections of the Constitution. I hesitate to get outraged at what's happened so far simply because my experience with Law and Order leads me to have some vague recollection that they can hold someone for a while without arresting them while looking into things, and I'm not sure how that works exactly. But those legalities aside (which they should exploit to the fullest as long as it's legal), he needs to be Mirandized if we're going to hold him.

This is not to say that all terrorists need to be Mirandized. If you have someone sent as a part of an orchestrated attack on the United States and they can therefore be reasonably designated as an enemy combatant, give them the Constitutional due process of an enemy combatant rather than the Constitutional due process of an accused felon by all means. But that needs to be established - as the Supreme Court told Bush - and I don't think some youtube videos posted by Tsarnev's brother establishes it. The military can always step in later and take custody of him if it looks like it makes sense to treat him as an enemy combatant.

Of course I may not know everything and they may already have all this information.

[UPDATE: Also, I heard he is currently unconscious? Is that true? Is it possible he is not Mirandized because of concerns around Mirandizing an unconscious person (how can we be sure he know his rights?)]

Also on rights:

- Obviously what happened on Friday (to say nothing of Monday) is something we're still all learning about, but my impression at the moment is that the lockdown was probably a policy mistake rather than a Constitutional mistake (as some people are framing it), at least when it comes to the whole city of Boston. My best understanding is that it was nothing like martial law and it was a request not an order, but I do find it a little absurd that areas outside Watertown were locked down at all. A general "be safe and report anything suspicious" probably would have sufficed outside of Watertown. This isn't meant to minimize the announcement. Just because it wasn't a Constitutional travesty doesn't mean it wasn't problematic. Knee-jerk reactions like that by government set precedents. I'm not especially worried about this reaction sending us down the road to serfdom, but I still think it was a mistake.

- As I understand it the door to door searches in Watertown generally happened with permission, so no fourth amendment issue there whatsoever. Those strange cases where residents did not give permission (I imagine most did - who wouldn't?) seem to have exigent circumstances attached which means it's also not a fourth amendment violation. This case is basically made by Katy Waldman at Slate too.

So generally speaking my biggest Constitutional concern right now is how they treat Tsarnev. I don't have a whole lot of those concerns around the search itself, although much of the search was probably ill-advised.

27 comments:

  1. "he needs to be Mirandized if we're going to hold him"

    Really? I thought that only affects the admissibility of his statements as evidence in court. Are you saying there is a Constitutional right to be Mirandized before being questioned? Dude does need a lawyer though.

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    1. Best tossed to a lawyer at this point. You're right that it's about statements rather than the arrest itself, but I'd think if we're going to prosecute him we'd want his statements admissible!

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    2. "I'd think if we're going to prosecute him we'd want his statements admissible!"

      He can probably be successfully prosecuted for murder without him uttering a word. The major reason for wanting to interview him would be to find out if this is part of a broader conspiracy. For him, his statements might be the difference between life in prison for murder and execution for terrorism (ie he should either keep his mouth shut or say that he will say everything he knows if the prosecutors take the death penalty off the table).

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  2. Here's an alternative explanation of what happened in Boston: http://delawarelibertarian.blogspot.com/2013/04/the-invasion-of-boston.html

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  3. 1) You never have to be mirandized as long as they are willing to have your statements thrown out in court. However, there is no "fruit of the poisonous tree" issue with the statements of non-mirandized suspects. So if for instance, they get him to admit to the location of a bomb he stored somewhere, they can go find the bomb, use forensics to tie him to it and have that be admitted even though they can't admit the statement.

    In addition, they can interrogate him without mirandizing him, mirandize him and then try to get him to repeat his earlier admissions. That may be a very effective strategy. Go read the Orin Kerr posts at the Volokh Conspiracy for details on stuff like that.

    There is also a public safety exception to Miranda. Though as time passes the chance of that exception applying diminishes.

    2) I'm somewhat disappointed by your statement that "they can hold someone for a while without arresting them while looking into things, and I'm not sure how that works exactly. But those legalities aside (which they should exploit to the fullest as long as it's legal)" Your post seems to imply that you believe Miranda to be an important constitutional right. But you also want them to exploit holes in Miranda to the fullest extent possible. Is that because you support Miranda only out of Constitutional legalism? Or is it perhaps that you trust those "holes" to be legitimate limits on Miranda?

    As an aside, I'm not a huge fan of Miranda. I understand its purpose, but I think it should just be a safe harbor allowing the police to easily prove that you knew your rights. But if for instance, you arrest a criminal defense attorney, you should be able to go to court and prove that he already knew his rights.

    3) I honestly cannot find anything conclusive as to whether the shelter in place thing was compelled or not. I have heard of people being yelled at by police officers when they tried to leave their houses. (Which while not necessarily officially coercive, seems pretty coercive to me.) But maybe those were specific times and places during which LEOs had specific information that the suspect was nearby. I have heard some people refer to it as advice. I have heard it referred to as a "shelter in place order". I really wish somebody would actually examine the issue and provide a definitive answer.

    4) I would not let police officers in my home to search it as a general rule. I am to be completely honest unsure as to which of the vast body of laws I may or may not be violating at any particular point in time and I would not be willing to risk having LEOs find something which I did not know was illegal.

    I also engage in some hobbies about which LEOs are notoriously uninformed: I enjoy lock-picking. I have informed myself on the legality of my hobby (there are organizations which do legal research on this) and I know that LEOs are often uninformed about this. For instance, I recall a class last year where a nearby police officer started explaining why the class was legal to a colleague completely erroneously. I really have no interest in getting arrested just because LEOs didn't know what I was doing was legal.

    5) As I understand it, exigent circumstances allows you to wave the warrant requirement, not the probable cause requirement. A house-to-house search is as clearly as can be an example of a search without probable cause. You're searching houses based upon nothing more than their geographic location as opposed to clearly articulable facts that this house contains the fugitive.

    I am not a lawyer, but this is also the sort of thing I study as a hobby, so I am fairly certain that I have not said anything too wrong here.

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    1. re: "But you also want them to exploit holes in Miranda to the fullest extent possible. Is that because you support Miranda only out of Constitutional legalism? Or is it perhaps that you trust those "holes" to be legitimate limits on Miranda?"

      I don't follow your logic. I support anything but simple Constitutional legalism. But I don't want policing to be ineffective by not using fully constitutional tools at the police's disposal. I think you are looking for reasons to be disappointed here.

      On letting the police in as a general rule, I would agree. In this circumstance I would probably try to facilitate what they were doing. I hoped that was clear from the post, but I'm not suggesting some kind of general "if you've got nothing to hide what are you worried about?" mentality. Normally I would demand a warrant. But in this situation the police have no idea if you're not letting them in because you are under duress or what, and I would want to not slow down the manhunt.

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    2. "I don't follow your logic. I support anything but simple Constitutional legalism. But I don't want policing to be ineffective by not using fully constitutional tools at the police's disposal. I think you are looking for reasons to be disappointed here."

      Well, let me put it this way. There are many limitations placed on rights which are aimed at dealing with a variety of practicalities such as officer safety, paperwork and similar things. For instance, until Arizona v. Gant, police officers were allowed to search the vehicle of an arrestee on the theory that the person might have a hidden weapon which they might be able to use against the police officers if they managed to escape. Of course, this was only meant to be used while the arrestee was still on the scene since after the arrestee was removed from the scene, weapons in their car no longer presented a danger to police officers.

      Of course, there was a different way to look at it for police officers: As long as they kept the arrestee on the scene, they could search the vehicle legally and the plain-view rule would allow them to use whatever they found. (i.e. drugs and an illegal weapon in Arizona v. Gant)

      I understood your post as advocating the fullest use of that kind of "legalities": exceptions which were created because of practical concerns in the implementation of the right and are then used to (partially) circumvent the right beyond the cases where those practical concerns are present.

      "I hoped that was clear from the post, but I'm not suggesting some kind of general "if you've got nothing to hide what are you worried about?" mentality."

      I don't think your post appeared to take a position on that issue. I just wanted to point out that while helping the manhunt is a good thing, it is not without cost and some of us would not be inclined to be so helpful as to invite police officers in our house. Maybe it would be good to enable police officers to agree that their search will be limited in scope and that anything they find outside of that scope will not be admissible with all the fruit of poisonous tree guarantees.

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    3. I have no interest whatsoever in circumventing the right, period.

      I would not hamper the most effective exercise of that right. Given that the right is being completely respected, I would not err on making Tsarnaev's life easier.

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    4. Oh, and I might be wrong on the house-to-house search. Orin Kerr (one of the most prominent Fourth Amendment scholars) seems to think the house-to-house search could be legal under the Fourth Amendment. (I can't believe I forgot reading that!) And unfortunately, thanks to qualified immunity we probably will never know.

      http://www.volokh.com/2013/04/19/house-to-house-searches-and-the-fourth-amendment/

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    5. Because one thing Tsarnaev definitely doesn't have a right to is the police taking extra care to make life easier for him.

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  4. Anyway, dozens of people died in the 1960s and 1970s as the result of the spate of terrorism (mostly from the left) that hit the U.S. at the time - the body count was in the range of ~70-80, compare that to the roughly dozen Americans who have died in the U.S. after 9/11 as a result of terrorist events as such are generally defined. The republic survived and the people involved in those acts were not stripped of their various constitutional protections in the process.

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  5. "mostly from the left"

    Right - let's pretend the right wing, anti-government, bombing at Oklahoma City never happened.

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    1. Absalon,

      The OKC bombing didn't happen in the 1960s or 1970s, it happened in 1993. *facepalm*

      The point of course of my comment was that the U.S. successfully dealt with a bunch of terrorist attacks (mostly from the left) in the 1960s and 1970s through the standard procedures found in in the civilian courts. There is no particular reason to think that this doesn't pertain today no matter what motivating ideology.

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    2. "The OKC bombing didn't happen in the 1960s or 1970s, it happened in 1993."

      I know. You jumped right over OKC, further into the past, so you could cherry pick.

      I doubt that Fred Hampton would feel that his constitutional rights were respected.

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    3. the statement that U.S. successfully dealt with a bunch of terrorist attacks, previously and unfortunately, is not true

      For example, the prosecution of several weathermen (Bill Ayers) was pitched on legal technicalities due to the FBI being idiots in how they conducted their investigations.

      Further, no arrests were ever even made in the Wall Street/JP Morgan bombing in 1920

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    4. Yes, Absalon, because you obviously have direct access to my brain. What's passing strange is that somehow a comment meant to basically say hey, the normal system of the courts here in the U.S. can work through these sorts of cases (and did in the 1960s and 1970s when acts of terrorism came mainly from the left) becomes instead something about ignoring right-wing terrorism. Yes, OKC was an example of right-wing domestic terrorism and the individuals involved in it were tried in the civilian courts. Is your overly sensitive constitution satisfied now Absalon?

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  6. "I hesitate to get outraged at what's happened so far simply because my experience with Law and Order leads me to have some vague recollection that they can hold someone for a while without arresting them while looking into things, and I'm not sure how that works exactly."

    With all due respect Daniel, Law and Order (and any other work of TV drama that heavily focuses on lawyers) should not be taken as an authoritative source on how the law works.

    Although my knowledge of law comes from a different background (though British common law and American common law are historically tied, there are important differences), my understanding of what are called "Miranda rights" in America is that part of it is descended from the right to silence in the law of England and Wales, which can be traced further back into the 17th century.

    I agree with all those who say that the remaining suspect should have been read out his legal rights. All I'm saying is that one shouldn't rely on a television drama as a source of knowledge (or as a reason to go into a profession, at least without properly investigating how the profession actually works in the real world versus the dramatised version on TV).

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  7. it is amazing to me that people read so much into so little---the police asking people to stay home and businesses to close on Friday.

    The mere need to keep traffic off public streets to permit rapid deployment of officers and equipment justified the order, which was no different police closing a street.

    People, especially here, need to learn the difference between what is de minimis and what is substantial and important.

    What is equally troubling is that our "press" is so shallow. What was newsworthy even in the claims by attention seekers from the right who were claiming he was a combatant.

    If anyone had the good sense to stop and reflect, they would realize that no one more than Obama wants to know what the bomber knows.

    I

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  8. "the Constitutional due process of an enemy combatant"

    There is no such thing. The term "enemy combatant" was made up to skirt the law, because the law made no mention of the term.

    What is the Constitutional distinction between Tsarnaev and John Brown or Timothy McVeigh?

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  9. Q. What is the Constitutional distinction between Tsarnaev and John Brown or Timothy McVeigh?

    A. The political career of Lindsey Graham.

    Beyond that, several of the comments above wholly lack common sense, failing to realize that the Constitution has really nothing to tell us about how to deal with the situation now before us and that labels are of no use, either. In fact, they interfere with clear thinking.

    Take the most simple of examples. In 1790 the idea of a time delayed bomb with a significant time delay was not even on the horizon. Thus, our Founding Fathers never even considered what to do with some about whom there are some reasons for thinking that he or she have left a pressure cooker bomb set to go off by timer somewhere in a city of several million people. Thus, they gave us no "answer." If asked, undoubtedly they would say the Government would have the power to ask. However, the 8th Amendment is pretty strong evidence that they very likely would be opposed to using torture to obtain the answer.

    Law is a prediction of what a Court will do in the future. Don't most people expect that our courts will affirm a conviction in this case, regardless of Miranda, as long as the questioning did not involve torture?



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    1. "In 1790 the idea of a time delayed bomb with a significant time delay was not even on the horizon."

      The Gunpowder Plot was in 1605 so the Founding Fathers certainly had a historical precedent to consider of a bomb designed to go off when most or all of the plotters were nowhere near.

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    2. Absalon

      You are so dull. Who said that bombs and explosives were unknown? As everyone knows, Fawkes was caught in the cellar beneath the Parliament and tortured until gradually he began to reveal details of the plot.

      My point---you are incapable of understanding a point---is that the need to torture to reveal the location of bomb was unknown, drawing a distinction from torturing to learn the identity of one's co-conspirators.


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    3. Alex ... you want to draw a distinction between torturing to discover the existence of additional bombs currently in place, set to detonate in the future, and torturing to discover the identities of co-conspirators who may create a new bomb and set it to detonate in the future. You can do that if you like, but don't expect me to follow you down that rabbit hole.

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