Once arrested, a terrorist suspect should be interrogated for
information regarding any imminent terrorist attacks. That is the top
priority. It is critical not to give such suspects the chance to delay
answering questions while waiting for a court-appointed attorney.
Reminding the terrorist suspect that he or she has the right to remain
silent can only increase the possibility that the terrorist suspect
will remain silent. It is completely contrary to our country’s
immediate interest in preventing the loss of innocent life from more
terrorist attacks.
It was, therefore, amazing to hear Carly Fiorina and Chuck Devore in
the recent League of Women Voters’ debate both announce that terrorist
suspects who were American citizens should be given Miranda warnings
before any questioning. Such a view is tremendously short-sighted and
reflects a lack of knowledge of US Constitutional law.
The Miranda warnings
are needed only if the prosecution intends to rely on the suspect’s
information in a subsequent case in a civilian court. There is no
Constitutional requirement to give the warnings, they are only needed
if testimony is going to be used at trial. In the case of the Times
Square would-be bomber, there was plenty of other evidence linking him
to the crime, apart from anything he said. And even if there weren’t,
gathering evidence for a criminal prosecution should be secondary to
the immediate needs of preventing an imminent terrorist attack.
Even if the criminal prosecution were the most important goal, trial in
a military tribunal, which is appropriate for the Times Square bomber,
does not follow the same rules as trial in a civilian court. The US
Supreme Court has long made clear that American citizens can be held as
enemy combatants, and tried in military tribunals, when captured on
American soil.
See Ex Parte Quirin,
317 U.S. 1 (1942). The Court has not yet ruled on whether information
volunteered by a suspected enemy combatant can be used in military
tribunals in the absence of Miranda warnings. In my view, the answer
should be a resounding yes. Battlefield interrogations will provide the
very best evidence to determine whether an individual is an enemy
combatant, including American citizens who have chosen to become
members of that category. It is absurd to tell an enemy combatant
captured on a battle field that he has the right to an attorney.
That
should not be any different where the enemy combatant is being
interrogated in America, having been captured in the act of an attack
on America itself.
The United States is at war, against enemies who enlist our own
citizens, and who plan and execute attacks on innocent civilians, as
well as our troops in Iraq and Afghanistan.
A United States Senator
should be giving all the support possible to law enforcement’s efforts
to find out about such attacks. A mistaken interpretation of the 1966 Miranda opinion is not a good way for a candidate for US Senate to show that kind of support.