The Home of Steven Barnes
Author, Teacher, Screenwriter

Thursday, May 06, 2010

MIranda and human rights

In speaking of the Times Square bomber yesterday, the question of Mirandizing came up, and in a very reasonable series of responses, Frank suggested that this right should be extended to Americans. It was also pointed out that this was difficult in a battlefield situation, and I have to agree. But I got the sense that part of the potential disagreement comes from some core difference of pre-assumption. While my opinions about these things are only my own, I felt it might be useful to make them explicit.
1) That the basic human rights given to Americans are given not as a gift, but because they are "self evident" and intrinsic. Law is not granting privilege, but rather acknowledging the true nature of man. Attempting to guide us toward spiritual and social growth by discouraging the natural human instinct to deprive rights and tear the flesh of those who frighten us. These are not rights to be "given" to Americans but not to others.
2) The best way to protect our country is to protect the core principles that make it such an incredible, wonderful dream. An ideal of freedom and possibility that arises from human aspirations going back to the beginning of time. The idea that the maturation or humanity of a society is displayed best by the way it treats those powerless in its grasp. Again, this is not about the lives and comfort of the "enemy"--it is about the disposition of our own souls. If one takes the position that the spiritual reality has nothing to do with this--we care only about survival, then the discussion must be whether coercive tactics, or lack of Mirandizing, best contributes to that survival. A perfectly valid conversation.
3) My belief is that coercive tactics do NOT make us safer. That Mirandizing DOES. My logic works like this: it is critical for us to find and punish the actual guilty people. Critical also that we protect the innocent. I notice in discussions like this that almost never do those in favor of harsh tactics (let's lump the Miranda conversation under this umbrella just for convenience) refer to "terrorism suspects." They refer instead to "terrorists" as if they have certain knowledge that that is what these people are. Excuse me? I thought that was what the legal process was about, the determination of guilt, and the decision of appropriate punishment.

Miranda, and the various prohibitions against torture, exist at least in part because we understand the human tendency to rush to judgement, to lynch based on "everybody knows the bastard's guilty!"
"he confessed!" when we know that there has probably never been a society where the police, under killer emotional stress, have not applied force to elicit false confessions. Where the insane have not confessed to crime they did not commit. Where false witness was not a tool of vengeance (why else would it be in the 10 Commandments?). Where honest mistakes are not made by, say, soldiers trained to kill and protect, NOT to be CSI or Profilers while figuring out who was shooting at them, and why.
"Extending" rights to people is probably technically accurate. My belief that the Founders considered these rights innate and unalienable can be debated, but I think it appropriate to make my case here explicit. Protecting the rights of strangers is protecting my own rights, and the rights of my family--knowing that to many, I am the "Other" and that arguments about taking my rights have been made, and not always behind closed doors. I won't go there.
4) So that would be my position. Those on the other side would seem to believe that:
a) Torture extracts more valid and valuable information than non-coersive means.
b) That human rights are granted by the state rather than intrinsic in our existence.
c) That granting a suspect a lawyer, and reminding them of their right not to self-incriminate weakens the legal system's ability to bring the guilty to justice.
All of these things are points I have heard made by sane, honorable people. They would seem to support a different POV on the human condition, the proper course of society, and the nature of reality than that I hold. That pesky thing I've noticed where people talk about "terrorists" rather than "terrorism suspects" bothers suggests a level of assumed omniscience in government employees...but is often given by people who, under other circumstances, seem to take the position that government can't be trusted to do anything right.

This really troubles me, and would seem to be double-speak. Perhaps (and I mean this sincerely) I am missing something. But it feels like it comes out of raw fear, and that primal urge to hurt those who frighten us, and a belief that "I know a bad guy when I see one." The typical police officer or soldier might be twice as moral and wise as the average citizen--and under the daily survival stress would STILL be capable of extraordinarily inhumane behavior. "Cry havoc and loose the dogs of war." Open those gates, and you unleash the most horrific potentials of the human psyche. This isn't about soldiers and cops being bad people. This is about them being human beings. I really, really, don't want to ask them to exhibit restraint or judgement that seems beyond the ability of human beings. I don't want to give men with guns the belief that they can determine who is guilty. Inevitably, soldiers and police must make such decisions: someone shoots at them, shoot back! Someone is running down the street carrying a gun and a sack of money, it's a bank robber! Or as Dirty Harry said "I see a naked man running after a woman, with a knife and a hard-on, I shoot the bastard." I get that, under stress, you have to make snap decisions. But when that instant stress diminishes, THAT is where we have to cool down, and make the very best judgment about guilt or innocence. Understanding in the process that we have to protect ourselves not merely from the "bad guys" but from the imperfections of our own minds and spirits.

This is difficult stuff. People who think differently from me on this are still good and decent people--and tend to be the kinds of folks who actually place themselves in peril to protect our country and community. No one who has ever read a single one of my books could hallucinate that I have anything but the highest respect for them. And yet...if human beings didn't cheat under pressure, didn't make mistakes to give "their team" advantage, we wouldn't have this odd thing called referees at every damn sporting event.

We're imperfect. We are afraid. We cheat for the home team. We believe our tribe is better, and that the "Other" isn't quite as human as we. Bad combinations under stress.


Marty S said...

Steve: Its 9/10/2001. You have reason to believe that person X has an information about an attack on U.S. soil. Do you arrest him as part of conspiracy to commit a crime. If so what crime, since no attack has yet occurred. If do arrest him do you Mirandize him and give his call to his attorney. Then on 9/11/2001 after two planes crash into the WTC you do add the charge of conspiracy to commit the murder of thousands of people. There are times when we must treat our enemies as enemies or suffer the consequences.

Steve Perry said...

But who decides and when, Frank? Who has that crystal ball s/he can scry and come up with the certainty that it's okay to torture this one because we are *sure.*

We are either a nation of laws or we aren't. Once you decide it's okay to treat some folks differently because you think they might be real bad guys, the clock starts ticking on the rest of us.

That, "Kill them all, God will know His own." is pretty much a bypass for Heaven and the road straight to hell.

You can see that, can't you?

Marty S said...

Steve Perry: I take it you are for doing everything legal to find and deport all illegal aliens. After all if they are here illegally then they are violating the law and we are "either a nation of laws or we aren't.".

Lobo said...

Marty, you know that "24" isn't a documentary, right?

And what if we torture the guy and it turns out he doesn't know anything?

Better yet, what if they came to your door on that morning and were absolutely sure you had knowledge of an impending attack? Would you willingly submit to being stripped of your rights and subjected to torture? And once your jailers were satisfied you didn't know anything (if they ever get to that point), would you just shake their hand and let them know there were no hard feelings because they were just doing their jobs? Should we not mind your mistreatment because they were just doing it to protect all of us? What if they decided that it was important enough to bring your family in and interrogate them too? Once they've decided it's okay to strip you of your rights, what's to stop them?

Rights are rights are rights. We don't lose our rights because someone suspects we may be up to no good. And we don't lose them for expediency.

Also, to answer your question, yes. You charge the bastard with the murder of thousands of people and you put him on trial. Then, because he was properly mirandized, you get a conviction and stuff him into a hole for the rest of his life. That's how a nation of laws rolls.

BTW, please refrain from
tawdry emotional manipulation.

Anonymous said...

"In speaking of the Times Square bomber yesterday, the question of Mirandizing came up, and in a very reasonable series of responses, Frank suggested that this right should be extended to Americans. It was also pointed out that this was difficult in a battlefield situation, and I have to agree..."

It's not as difficult in a battlefield as it seems - you can't Mirandize 'em but you can still Genevize them.

Marty S said...

If you consider my previous example objecting to the use of statements like "the is the law" when you favor a particular maybe you will consider these two examples less tawdry. All those lawbreakers in the 1800's who helped runaway slaves escape from the south to the north. All those lawbreakers who hid Jews from the Nazis. Ask yourself this. You are member of anti-terrorist task force. You capture individual X who has been part of terrorist plot to release a bio-toxin into the water of a major U.S. city. This individual was a courier who turned the toxin over to another individual Y who knows where and when the attack will occur. He gives you this information after you Mirandize him and offer him a deal. You now arrest individual Y. You Mirandize him and offer him a deal if he will give you the details of the attack. He refuses to tell you anything and the next day the attack occurs and 150,000 innocent men,women and children die. Maybe you could say to yourself I did what the law allowed its not my fault these people died, but if I felt that by what ever means necessary I might have saved those lives I couldn't live with myself.

Frank said...

But who decides and when, Frank? Who has that crystal ball s/he can scry and come up with the certainty that it's okay to torture this one because we are *sure.*

Um, I don't remember saying anything about torture. The question on the table was regarding whether or not to go through the civilian legal system.

The fact is, you only Mirandize someone if you want to use their statements in a civilian court. If you don't care if their statements are used in court you don't need to Mirandize the individual.

Now addressing the idea of human rights: Mirandizing someone has nothing to do with a basic human rights. If someone is a non-citizen (such as the Christmas "bomber") and he is caught in this country trying to propagate a terrorist attack, what makes him (or her) any different from a foreign agent attempting sabotage? If a German agent was caught in the US during WWII trying to blow up an airplane factory, how would he have been treated?

That's right: as a prisoner of war.

Which is precisely how a someone in the same position today should be treated.

And no one has yet answered the question why is it OK for the Administration to have an assassination order out on a US citizen?

And if you are so concerned about Human Rights, should we not be capturing enemies on the battlefield instead of killing them to avoid bringing them to Gitmo?

BC Monkey said...

Off topic, I know, but red meat on several different levels for Steve.

Marty S said...

Let me try and make mt position on the subject of using distasteful methods of extracting information from a prisoner a little clearer. One person, beats up or tortures an individual purportedly to get vital information, but really because he hates the group the individual belongs and enjoys what he's doing. This person is evil. A second individual hates the idea of torture and knows he will hate himself in the morning for participating in the act, but believes that the individual has time critical information that can save lives and that this is the only chance of getting the information quickly enough to save those lives. This is a person who simply doing his duty and should not be condemned for it.

Travis said...

Lots of legal fallacies bouncing around in these arguments. I'm not attacking anyone's side or reasoning but let's clarify a few point of law.

Marty- "Do you arrest him as part of conspiracy to commit a crime. If so what crime, since no attack has yet occurred."

Conspiracy charges don't require the crime to have occurred. That's why these laws exist; otherwise they would be charged with the crime rather then conspiracy. Actually it has become routine to charge people after the fact with both, the crime and the conspiracy,(and there is nothing wrong with that) but it isn't the original reason the laws were written.

Frank -"If you don't care if their statements are used in court you don't need to Mirandize the individual."

Kind of true, kind of not. The Constitutional Rights, commonly called 'Miranda Rights' don't come and go based on whether or not you are going to be charged. However, the sanction used to keep police and prosecutors on the (relatively) straight and narrow is the exclusionary rule.

"... what makes him (or her) any different from a foreign agent attempting sabotage? If a German agent was caught in the US during WWII trying to blow up an airplane factory, how would he have been treated?
That's right: as a prisoner of war."

Actually saboteurs are not legal combatant under the Geneva Conventions and are not afforded POW status. Just like Al- Qaeda members are not legal combatants and are, technically speaking, not POWs. I know most people hate that they are labeled “Detainees” and thinks it’s just a dodge by the Bush administration. These people have not actually read the Geneva Conventions.

"And no one has yet answered the question why is it OK for the Administration to have an assassination order out on a US citizen?"

Because he deserves it? I know, I said I was just going to do legal stuff but that's the best I got here.

Lobo said...

Marty, the tawdry emotional manipulation is setting up the "24" scenario where you are trying to evoke either a fear response or a guilt response. Either we get fearful enough to break the law or we feel guilty when someone else breaks the law. To demonstrate, I'll extend your scene out to another act. While interrogating Y, he tells you what you want to know. Then he rattles off a series of details about you and your family. He informs you that if you say anything, your entire family will be taken, brutalized, and then murdered painfully. Even the little ones. Do you sacrifice your family for the opportunity of stopping the attack? After all, you don't know if he is even telling the truth, but trying to verify will kill your family.

You can't torture the information out of Y on the day of. The thing about torture is that it takes time. You have to break the person all the way down before you can even start the real interrogation. A guy who knows he just has to hold on for another 24 hours is simply not going to break in time, regardless of how easy Jack Bauer makes it look.

How does one determine that a person sadistically brutalized someone out of actual sadism or out of duty? Did someone invent a mind-reading device while I wasn't looking? I imagine the sadist would just as quickly claim they didn't enjoy it as the other guy would.

Also, Marty, you never answered the question about whether it's okay for the authorities to show up at your door and take you away, strip you of your rights, and do whatever they deemed necessary to extract information they were sure you had. Just a reminder.

Why is it that Tim McVeigh got a trial, but this fail-bomber guy shouldn't?

Frank said...


Because he deserves it?

Well, yeah.

But the hypocrisy is stunning.

And I do not agree it is better to leave a terrorist dead on the battlefield than it is to capture him and interrogate him.

This is they type of expediency born of hypocrisy that is just plain counter-productive at best; dangerous at worst.

And certainly doesn't speak to the huma rights issue of "what if you got the wrong guy?"

Steve Perry said...

I misspoke. Said "Frank" when I meant "Marty," sorry.

Marty --

Laws are designed to protect people from each other, either singly or en masse. And yes, often laws don't do the trick the way they were intended, history is full of those. Civil disobedience to get the right to eat at a public lunch counter is not the same as grabbing somebody up and shoving bamboo splinters under their fingernails to get them to talk.

Yeah, a cop can give you a ticket for running a stop sign every time, but if you are hurry to the hospital with your gravely-ill child or about-to-have-a-baby spouse in the car, chances are he won't.

Application of the law sometimes does admit to justice.

If you can't see the difference between a guy who sneaks across the border to make a better life for himself by dint of his own labor, and somebody who thinks it is okay to beat information out of a suspected terrorist, something is wrong with how you view the world.

Righteous men are one of the scariest things on the planet.

Marty S said...

Lobo: The odds that anybody is going to show up at my door, strip me of my rights and try to extract information are low enough that I won't worry about it. Now as to my 24 like scenarios, I use them because those are the circumstances, if they should arise that I would consider extreme actions justified. If we take a less dramatic situation like the Time Sq. bomber, no such action would be justified, unless the situation is very different from what's been released. If this guy was not working alone, he was at most a low level cog. It is unlikely he has any information that would justify any sort of physical or mental coercion to obtain. If an individual is being held as a terrorist, I assume that he is being held by a government security agency and any decision to use coercion to get information is being made not by one sadistic individual, but by an informed management who truly believes that this person has information which can prevent a serious attack on us. If an individual should abuse a prisoner without authorization then that individual should be severely punished and lose their job at least. I would be inclined to believe that if multiple senior members of one or more government agencies felt a particular form of coercion was justified in a particular case that it really would be justified.

Anonymous said...

I just read a news article that reminded me that coercion to get info can yield inaccurate info:

"A Chinese man who spent almost 10 years in jail for murder has been freed after his supposed victim was found alive.

"Zhao Zuohai had a fight with his neighbour, who then disappeared, and was charged when a headless, decomposed body was found 18 months later.

"The miscarriage of justice came to light when the neighbour, Zhao Zhenshang, returned to his village in Henan province to seek welfare support.

"He had fled after their fight because he feared he had killed Zhao Zuohai.

[BTW, anyone else think this detail amps up the irony?]

"Mr Zhao's conviction for murder was reportedly based mainly on a confession. His brother said police had forced him to drink chilli-tainted water and set off fireworks above his head to extract one..."

Mikey said...

Odd that this issue, came up, and NO mention of the Attorney General wanting to expand Miranda's public safety exemption.

I wrote about that recently here:

The administration came into the office wanting to eliminate the line between enemy combatants and common criminals that the former administration drew by creating a parallel military commission system for captured terrorists.

But now their experience dealing with terrorism has them wanting to weaken the protections of the civilian criminal justice system in order to handle the quite different threat that terrorists present as opposed a common criminal's.

So now we are all heading towards a degraded civilian court system, providing fewer protections. I don't think that was what the Obama administration intended when they decided to sweep away Gitmo and enemy combatant status.

Insert heavy irony here.