Suspect terrors (part two)

>> Friday, February 06, 2009

Perhaps the strongest and most-poorly-informed complaints about Miranda v. Arizona (384 U.S. 436, 1966) come from pundits and politicians on the right who say things like:

When we get people who are more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry. Dick Cheney did in a recent interview with Politico. The view--and I can't say whether the people who express it really believe it or just want us to--is that "liberal judges" have weighted the system strongly in favor of murderers and rapists to the detriment of society as a whole.

The problem with this point of view is that a concern with the rights of defendants is not merely a policy concern, but also a procedural concern: "How do we insure that the evidence submitted to a fact-finder is admissible and accurate?" A situation in which every person accused of a crime has a colorable claim that any statement he made was a lie imposed by duress or coaxed out through trickery is one in which the system itself is besieged--how do we know if any trial was fair or produced an honest result, if some of them were based on a fraud. And the more cases based on fraud, the less the tribunal is to be trusted for its results.

Chief Justice Warren, in the majority opinion in Miranda, writes:

The presence of counsel at the interrogation may serve several significant subsidiary functions, as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present, the likelihood that the police will practice coercion is reduced, and, if coercion is nevertheless exercised, the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police, and that the statement is rightly reported by the prosecution at trial.

Miranda, 471 [cit. omit.]

And this is where we get back to Mr. Cheney: the concern with reading the rights to an al-Qaeda terrorist and "protecting the United States against people who are absolutely committed to do anything they can to kill Americans" are the same fucking thing, Mr. Cheney, and not even in an abstract "do we become what we loathe?" kind of way, though there is that, too. Some of us happen to think that the best way to insure that somebody who might be a dangerous terrorist is identified and neutralized is to use the same fact-finding technology we use to identify and neutralize serial killers and pedophiles and mob bosses and arsonists for hire: trial by an impartial finder of fact. And not merely because of whatever basic rights a human being might have, however awful he is: the essential contest in a trial is a classic dialectic in which two views are submitted to a neutral fact-finder who must weigh the evidence and reach a conclusion.

And that's the reason we have rules of evidence in these contests. A lot of them, frankly, don't especially favor defendants and a few of them are based on shaky premises, but what they boil down to is a notion that these rules will guarantee some accuracy and reliability in a sometimes hazy process. And this, too, is why we have procedural rules to govern the administration of the affair.

I want a suspected terrorist given his rights and treated to due process not because I'm a squishy huggy bleeding-heart-liberal guy--tho' obviously I am that, and proud of it, thanks--but because I'm a lawyer and I have some faith that as crooked as the game sometimes is, it's the best game in town. It's better at getting to the root of what might have happened than dowsing, drowning, feats of strength or prayer. So I want that suspected terrorist read his rights (and to receive the rest of those procedural niceties that Cheney thinks he's being snarky about by referencing Miranda like that) because I think that if the suspect is a terrorist, Americans would be better off if he were legitimately in jail, and everybody knew it was legitimate because everybody could read the transcript for themselves. I don't think we're safer indefinitely detaining suspects, and there are a whole lot of reasons we're not safer, but one of them is that other people will stop believing we know who the terrorists are, and will stop cooperating with us or will even help our enemies out of misplaced sympathies. We will be the boy that cried "wolf" a hundred thousand times over, and the next time the wolf will do more than eat a shepherd or three-thousand shepherds.

This is what we get from a fair trial for a bad man, Cheney: anybody in the world can look at the affair and say, "Yes, the Defendant was a ruthless, terrible man who deserved worse than what the Americans gave him." We get certainty for ourselves--the man we caught was proven to be a dangerous man (and if he wasn't, we have the security of knowing we are wise enough to tell bad men from their betters). We give certainty to the world. And that makes us safer, far safer than a world in which we're not trusted to know the difference, where other countries will provide sanctuary and succor to our enemies because they can't trust us to know who our enemies are; a world in which our enemies can win approval by calling us liars for arresting this man or accusing that one because we haven't had the common sense to show our work. There's value in mercy, certainly, and in being the people we pretend to as a nation--but if that's not good enough, there's value in being right, fundamentally, essentially right and being able to prove we're right with proof that isn't tainted by abuse and neglect and indecency. Proof that isn't suspect because of the ways in which it was obtained.

Cheney worries. He worries because he believes, or says he believes, in a false choice--that the reason for giving a man due process is entirely one of misplaced nobility over safety. He's a fool, in short, because he doesn't understand that a bedrock principle of the Anglo-American system of jurisprudence is that the best way to protect people is to find out what happened in an honest, efficient and transparent manner. And since the honesty of interested parties is always suspect--whether the interested party is the Defendant or the State and its agents--the best way towards honesty is to let a neutral third party evaluate their claims. That means admissible evidence, reliable evidence.

This is not a situation where we must choose between what is right and what is best.


Random Michelle K Friday, February 6, 2009 at 11:50:00 AM EST  

Three quotes for you, that sum up my feelings on the subject:

We must be free not because we claim freedom, but because we practice it.
-- William Faulkner

Those who deny freedom to others deserve it not for themselves.
--Abraham Lincoln

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
-- Benjamin Franklin

We are free because we believe deeply--to the core of our beings--that our freedom comes from following the rule of law. Those laws must be applied across the board to everyone, we do not get to pick and choose who gets the laws applied to them based on a BFF list or the color of their eyes or the president's opinion.

US citizens in the US are to be treated following the constitutional rights set down by the founders and going back to common law.

Foreign citizens are to be treated according to international law--laws that we in many cases helped develop.

We follow these laws for many reasons: because we are scared not to, because we have sworn to uphold the constitution, because we know that how we treat citizens of other countries will affect how our citizens are treated abroad.

But most importantly we should follow those laws because those are the rules that keep us from tyranny.

The American Revolution occurred in part because all people were not, in fact, treated equally under the law.

That it has taken us less than 250 years to forget this shames me deeply.

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