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Regulatory Takings
Miranda Warnings and Terrorists
U.S. Constitution: Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Take a few minutes and read the Fifth Amendment.  Dissect and analyze this simple paragraph, because it covers a lot of ground.  When you read, “nor
shall be compelled in any criminal case to be a witness against himself,” you should recognize the essence of the Miranda Warnings:

You have the right to remain silent.
Anything you say can and will be used against you in a court of law.
You have the right to speak to an attorney, and to have an attorney present during any questioning.
If you cannot afford a lawyer, one will be provided for you at government expense.

This is just the short version of Miranda.  Miranda warnings are often verbose to avoid suppression challenges.   In short, Miranda is simply an
expansion of the Fifth Amendment’s right against self incrimination for those who are too stupid to understand one sentence containing fourteen words.

Now, after two hundred plus years, the Fifth Amendment has accumulated a lot of baggage in the form of legislation and case law:
Just for the fun of it, go to the link I’ve provided on the left to Confessions: Police Interrogation,
Due Process, and Self-Incrimination.  You’ll soon realize just how something simple can get really
complicated.  When you become a police officer, you’re going to learn that there is nothing you do
that isn’t going to be complicated by others.  Don’t forget, you’re going to be doing your job in a
society where lawyers actually outnumber police officers.  

Miranda is not a Big Deal

You have to ask the question, “Why do we have Miranda?”  Prior to Miranda, every incriminating
statement your suspect made to you could be used as evidence against him in court.  This was not a
good situation for the suspect, but more importantly, it was not a good situation for the attorney
defending the suspect/defendant in court.  The lawyers and the judges – lawyers in robes – simply
used Miranda as a means to give lawyers an edge in gaining acquittals for their defendants.  
Initially, Miranda was beneficial to defendants and their lawyers, but once police devised and
perfected procedures for adhering to Miranda, its adverse effects to prosecution and beneficial
effects for defendants and lawyers became negligible.

When you start interrogating suspects, you’ll probably be surprised how little, if any at all,
Miranda will affect your suspect’s willingness to talk to you.  Every now and then, you’ll run into a
suspect who will not talk.  This suspect fits a type.  He could be completely ignorant of the Fifth
Amendment and Miranda, but he’ll be smart enough to know that talking to you is not in his best
interest.

One of the reasons why Miranda is ineffectual is that it is so ingrained in our culture.  For many
people, familiarity with anything will tend to diminish its importance.  But, the biggest pitfall for
Miranda is human nature.  Most people have a natural urge to respond to accusatory statements or
questions.  Even if a suspect exercises his right to remain silent, there are no prohibitions for you,
the interrogator, to remain silent.  A skilled interrogator, armed with relevant information, can
talk to a suspect in custody indefinitely without ever asking a question.  That same interrogator,
even with an attorney present, can phrase statements and questions in ways which makes the
suspect’s urge to respond overwhelming notwithstanding his attorney repeating, “Don’t answer
that.”   Remember, a key element to any successful interrogation is custody.  You have a –
literally – captive audience, and the interrogation isn’t over; until, you say it’s over.

When it comes to terrorism and terror suspects, there are plenty of valid arguments for treating
terror suspects differently from what we’d consider generic criminal suspects.  However, when any
investigation attains a high public profile, everything becomes more complicated.  Let’s take the
case of Faisal Shahzad, the suspect charged in the May 1, 2010 attempt to explode a car bomb in
New York City’s Times Square.  Even though Shahzad was given Miranda Warnings; the United
States Department of Justice was quick to announce that Shahzad was still talking.  That
announcement could be true and it probably is true.  The one thing that terror suspects have in
common with other despicable criminal suspects is that they are all people.

Personally, I’m in the camp with those who think a terror suspect associated with any terrorist
network should be treated differently from other criminal suspects.  You probably don’t find that
view surprising coming from a career police officer, but it’s a position I don’t take lightly.  I take
individual rights and due process very seriously; however, I also know that the goal of organized
terrorism is to destroy the United States and all the individual rights we enjoy.

Treatment of terror suspects did change after 9/11, but 9/11 is in the rear view mirror, and those
charged with protecting the country from terror attacks have determined that terror suspects
should be treated like any other criminal suspect.  I just hope that another 9/11 by another name
does not occur to change that view.  If it does, Miranda Warnings for terrorists still won’t be a big
deal.