One of the down sides of sharing a blog with a lawyer is the fear of persecution for being an “Outhouse Attorney”.
So, with full knowledge that John Doe, esq. may well prove me wrong in this matter, I submit the following. (At least I know John won’t take issue with me dissing Dan Riehl. – LTB)
This is cross-posted at my other site – Viewed From The Right.
Over at Riehl World View, Dan is musing failure to provide the Times Square bomb suspect his Miranda rights amounts to a “carve-out” and minimizes the rights of an American citizen.
Many on the Right might disagree, but within our current system, I don’t think it’s a good idea to start making carve outs like this on Miranda. I doubt they would survive a court challenge. Naturalized, or not, the government made him a citizen. That affords him the same Constitutional protections we all enjoy. Looking at that process, as opposed to making ad hoc decisions that impact Constitutional protections might be the wiser move.
John McCain was quoted as saying:
“Don’t give this guy his Miranda rights until we find out what it’s all about”.
Dan, with due respect, McCain got this one right, and you’re dead wrong.
The suspect should NOT receive Miranda protection for this incident. Especially in light of subsequent arrests of other in Pakistan in relation to this event. Allow me to explain why…
One of the tests of Miranda application is whether the activity is considered criminal:
“…Under the exclusionary rule, a Miranda-defective statement cannot be used by the prosecution as substantive evidence of guilt. However, the Fifth Amendment exclusionary rule applies only to criminal proceedings. In determining whether a particular proceeding is criminal, the courts look at the punitive nature of the sanctions that could be imposed. Labels are irrelevant. The question is whether the consequences of an outcome adverse to the defendant could be characterized as punishment. Clearly a criminal trial is a criminal proceeding since if convicted the defendant could be fined or imprisoned. However, the possibility of loss of liberty does not make the proceeding criminal in nature…”
Terrorism, whether internal or external, is not and should not be a CRIMINAL act, rather it’s an act of aggression against a nation, or an act of War. It should be treated as such, and therefore suspects should NOT enjoy Miranda protection. That the suspect is (or is not) a citizen should be trumped by the nature of the action.
Following this logic, Timmothy McVeigh should not have been Miramdized (IMHO). Nor Sheik Towelhead Mohammad for the WTC attack. Later, if in the course of investigation no profound link to acts of terrorism can be proven, I believe he should then be Mirandized and placed into the criminal system as prosecutors see fit. But not until.
One of the things Eric Holder and Mr. Obama have done as part of their “Pussification of America Doctrine” is further blur the lines between criminal and hostile acts. And this is why we are here today – a nation hobbled from within by Socialism and Liberalism. And we should not be extending the same rights guaranteed to regular citizens to alleged enemies of state.
As always, one man’s opinion. In this case, not even a lawyer’s opinion – YMMV