There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:

Law is a quantitative variable. It increases and decreases, and one setting has more than another. It is possible to measure the quantity of law in many ways. A complaint to a legal official, for example, is more law than no complaint, whether it is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. So is the recognition of a complaint, whether this is simply an official record, an investigation, or a preliminary hearing of some kind. In criminal matters, an arrest is more law than no arrest, and so is a search or an interrogation. An indictment is more law than none, as is a prosecution, and a serious charge is more than a minor charge. Any initiation, invocation, or application of law increases its quantity, even when someone brings law against himself, as in a voluntary surrender, confession, or plea of guilty. Detention before trial is more law than release, a bail bond more than none, and a higher bail bond more than one that is lower. A trial or other hearing is itself an increase of law, and some outcomes are more law than others: A decision in behalf of the plaintiff is more law than a decision in behalf of the defendant, and conviction is more than acquittal. The more compensation awarded, the more law. And the same applies to the severity of punishment as defined in each setting: the greater a fine, the longer the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….

And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.

It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.

It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.

But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.

This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.

First of all, Law. Generally speaking, law is the rules by which a society lives. If life were a board game, law would be the sheet of instructions. In circumstance A, you can do either B or C, but you’re not allowed to do D unless E. But that’s not exactly accurate. There are plenty of rules by which we live that do not count as law. Politeness, morality, custom, tradition — there are tons of rules that apply to us that, though they may perhaps even be more important or powerful than law, are not law. Law is different. It’s that subset of societal rules that are imposed by an authority, fixed, only changeable by official act of that authority, applicable to everyone unless their own exceptions say otherwise, and perhaps most critically they are enforceable by that authority. The nature of the authority itself doesn’t really matter — it could be religious or political, dictatorial or democratic. Neither does the source of the law matter — it could be imposed by a supernatural being and thus unchallengable by mere humans, it could be crafted by delegated experts or judges or tyrants, it could be legislated in and out of existence by popular vote. What matters is that there is some authority, that the authority defines particular rules for everyone to follow, and that the rules are enforced by that authority.

There are different kinds of law. Some law is statutory, created by legislators or rulers with legislative authority. When most people think of laws, they’re thinking of statutes. Some law is regulatory, created not by a legislative authority but by a governmental agency or ministry. Regulations are rules for dealing with that agency or ministry, or for otherwise statutory subjects that have been delegated to the agency’s rulemakers. Regulations typically affect people such as those receiving government funds or whose actions have significant effect on the general population. A third type of law, common law, is created by judicial decisions that try to clarify what the enforceable rules actually mean, including customs that are so strong and important as to merit enforcement. Finally, constitutions are the laws of how governments are to exist and operate, and what their general authority is and is not. (Some countries’ constitutions are more akin to legislation, but that just means they’re using the word wrong.) These kinds of law exist at almost every level of society, from local community rules to international law.

The law may have more or less effect on a given society, depending on how much it adheres to the rule of law. A society that gives greater precedence to familial, tribal or commercial ties than it gives to the law is going to behave differently than one where the law is expected to apply to everyone regardless. Feuding behavior is better understood in a context of the rule of law (or more particularly, its absence) than a sociologist’s context of simultaneous social distance and closeness. Ditto for criminal consequences, civil lawsuits and commercial transactions. A “hostile takeover” has a much different meaning on Wall Street than it does in a society where one’s contracts and property rights are only enforceable to the extent you’re bigger and stronger and better-armed and better-connected than your competitors. Apart from the rule of law, different societies vary in their acknowledgement of particular human rights, property rights, and even how enforceable law is seen to be. And some laws are more of an idealized vision of how a society sees itself, than an accurate codification of what is really acceptable. So law itself is going to have different weights and values in different societies.

Governmental intrusion is another concept that’s important to understand. It’s not the same thing as law. It is when an authority interferes with a person or another authority. When the police frisk you or eavesdrop on you or arrest you or incarcerate you, that is not the creation of more law but a governmental intrusion that is either permitted by existing law or not. When the federal government takes over a state function, supersedes a local prosecution, or dictates a county’s educational policy on pain of a funding cut, that is not the creation of more law but a governmental intrusion on another government that is either permitted by existing law or not. Governmental intrusions are a critical variable in studies of human conflicts and interaction, and they must be understood for what they are. They are not law, but acts subject to the law.

Governmental enforcement is another important concept. Enforcement is a big part of what makes law Law, but it is not law. When a plaintiff wins a case, the government now empowers him to collect his compensation from the defendant, using the state’s courts and sheriffs to do so if necessary. That does not create more law, but more authority for enforcement. When two parties enter into a binding contract, as opposed to a less-binding agreement, there is not more law but instead authority for the government to enforce the agreement. When a defendant is convicted of a crime, that does not create more law but rather authority to enforce the law by imposing punishment.

Punishment is also different from law. Punishment is a severe form of governmental intrusion depriving a citizen or subject of life, liberty or property, or inflicting pain or distress, as a consequence for violating certain laws. Not just any laws, but those laws deemed so necessary for public safety and security and decency that violation requires just such extreme measures — either to dissuade that person or others from doing the same, to remove the threat from society, to otherwise make the criminal less likely to reoffend, or to satisfy a visceral desire for vengeance. Imposing more punishment does not create more law, but is instead a function of the application of existing law to individual circumstances.

It is important to understand why government intrusion, enforcement and punishment vary from circumstance to circumstance. But to do so, one must understand what they are. Lumping them together is not useful, and further lumping them in with the concept of law is epistemologically counterproductive.

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Separating these and other important concepts would, however, be very useful to the practitioner of Pure Sociology. Social distance, for example, plays an enormous role in the creation of law, its applicability or exception, and its outcomes. But it plays out in different ways.

In more traditional, localized and homogenous societies, law and the rules of conflict resolution are more likely to come from custom, moral authority, or religious belief. They aren’t likely to be codified in any particular way. Kinship and personal relations are much more important in how the rules are applied, or whether they apply at all.

But as societies grow larger, more structured, more heterogenous and complex — with more interactions, kinds of conflict, and opportunities for conflict — there is a greater need for fixed general laws, explicit formal rules, and a rule of law making them applicable to everyone equally. As society becomes more complex, it creates a greater demand for law. As human interactions become more likely to involve people unconnected by kinship or loyalty, the demand grows for clear systems of conflict resolution and enforcement.

Interactions between individuals within a tribal society are going to have different variables and outcomes than those of a large post-industrial society. To accurately predict what people and institutions will do, these differences must be understood. The same goes for international relations — the citizens of a post-industrial nation are going to perceive a conflict differently than members of a more traditional society, and they are going to perceive different potential solutions, dramatically affecting what the outcome will be. To understand an internal genocide, borderless terrorism or a full-on war, one must understand how the particular peoples perceive the rules by which they must live.

It can be hard to do, of course, because people generally don’t understand their own rules very clearly. They may have a sense of what’s right and wrong, what’s done and not done, but they may not be able to explain the philosophical principles on which those conclusions are founded. Real conflict resolution requires serious drilling down to the core principles underlying the competing positions, to either find common principles on which to base a solution, or to make plain the hidden causes of the conflict and thus enable the crafting of a workable resolution. Sociologists and philosophers can do real good here.

The same goes for the crafting of criminal laws, sentencing policies and rehabilitative programs — sociologists with a real understanding of not only what is going on but why, and what solutions are most likely to get the desired result, can be a source of great justice in the world.

But only if they are careful in their study. They cannot measure the myriad normative values, formal rules, and patterns of interpersonal and governmental interaction, unless they can first name what they are measuring. If you’re lumping everything into the same bucket, you’re not going to do anyone any favors.

The other day, we said the short answer is that the killing of Osama bin Laden was lawful.  Some have asked for a bit more detail in the answer.  We can’t give the full answer, of course, but we can give a slightly longer one than we did.  A full answer is going to require more facts than we’ve been able to glean from the papers, and is going to have to come from the DoD and the State Department anyway.  They haven’t given a full legal analysis yet (and that’s fine, by the way), and the actual facts seem to change each time we read about what happened.  Fortunately, the law doesn’t change with the facts.  So though we can’t give a full answer, we can make a few assertions with a fair amount of confidence.

First, lawful military targets do not only include those who are in the middle of shooting guns at your soldiers.  Anyone who is an identified member of a hostile enemy is going to be a lawful military target.

Al Qaeda is a known hostile enemy, one which has been involved in combat against the United States for a long time now.  Any identified member of that hostile enemy would be a lawful military target.  It doesn’t matter whether that person was armed or not.  Let’s repeat that: it doesn’t matter whether he was armed or not.  It doesn’t matter whether he poses any immediate threat.  All that matters is that he was an identified member of a hostile enemy.

With uniformed services, this is easy.  If you see a uniformed enemy officer, you’re free to take him out.  The uniform identifies him as a lawful target.  He could be walking down the street, minding his own business — it doesn’t matter.

But with non-uniformed enemies, there has to be some reason to believe the guy walking down the street is a member of that hostile enemy.  There has to be a reasonable certainty that he’s one of them.  In other words, you’ve got a positive I.D.

If you’ve got someone who is an identified member of a hostile enemy — either by uniform or by positive I.D. — then a soldier is allowed to shoot them, even if they pose no particular threat at the moment.  The lawfulness comes not from what they’re doing, but from who they are.

The only real exception is when they are hors de combat — a term of art that essentially means “no longer in a position to fight.”  Examples include the wounded, POWs, and those who have surrendered.

The only variable in Osama bin Laden’s case is whether he was hors de combat at the time he was shot.  Unless that exception applies, he was a perfectly lawful target.  The orders to kill him were lawful, and those carrying out the kill mission were acting lawfully in following those orders.

We weren’t there, and neither were you, so it’s impossible to say whether bin Laden had been incapacitated or had surrendered prior to being shot.  The facts reported thus far is that this wasn’t the case.  He doesn’t seem to have been the type to surrender in the first place.  And even if he had wanted to, the burden is not on the soldiers to figure that out — he’d have to make it extremely clear.  Which can be difficult in the middle of a firefight.

So there’s no reason to believe he was hors de combat. Given that, and given that there was a reasonable certainty that he was a member of al Qaeda, a known hostile enemy, he was a lawful military target, and it was lawful for the SEALs to take him out.

And that’s really all there is to it.

It’s only been a few days since Osama bin Laden was killed in a U.S. military assault on his compound in Pakistan.  And in those few days, the internet has been buzzing with discussions, debates and hand-wringing over whether the U.S. acted lawfully.  We’ve been reading thoughts of people on every continent, regular folks with access to a computer, who may or may not even know what they’re talking about.  And all we have to say is this:

We’re glad to be living in a world where such hand-wringing is possible.  More than that — a world where it’s actually meaningful (rather than silly) to wonder whether a precise military action by the world’s single greatest military power, against its universally-acknowledged military enemy, comported with some higher and overriding law.  A world where such hand-wringing is done at great length by that same great power, prior to engaging in the military action to begin with.

Imagine that, just for a moment.  Has this ever before been the norm, in the entire history of mankind?  Because it sure is now.

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How did we get here?  How did the world evolve to a point where the Rule of Law is the rule, not the exception?  Where everyone pretty much expects that even the greatest military power is not above the law?

It’s been a long time coming.  International law has been developing for centuries.  But credit has to go to the  U.S. and to the U.N., both for living by the Rule of Law (most of the time) and spreading the ideal and the idea.  It matters that the world’s superpower acknowledges the law, and cares deeply whether its actions are lawful, no matter which party happens to hold the presidency at the moment.  It also matters that the world has an engine for forming and enforcing (somewhat) rules that are binding not only on those who would be bound, but also on the strongmen and thugs who would not.

Of course, we’re not all the way there yet.  There still are plenty of places where the Rule of Law doesn’t exist.  They suffer for it — not just atrocities and depredation, but failed economies, corrupt governments, and dearth of opportunity.  If there is one thing above all that separates the first world from the third world, it is the Rule of Law.  Especially in this globalized world, the places that succeed are those where contracts can be counted on, everyone has to play by the same rules, and the rules are actually enforced.  Once you’ve got that, you can kind of predict what’s going to happen with enough certainty to invest one’s time, labor or capital to actually do something.

And it’s easy to spot the countries without the Rule of Law.  For example:

Still, the world is on the right path.  Let’s hope that there really is some sort of “arrow of history” like the one Francis Fukuyama proposed back in ’92 (though he did subsequently back away from the idea).  We’re hardly Utopian in outlook — our own mother calls us “old doom and gloom” — but it’s not unrealistic to hope for at least a trend towards more and more Rule of Law in the world, with the result of more and more general safety, security and opportunity.

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But we’re getting off topic.

The point is, we’re glad to be living in a world that can be full of hand-wringers over whether the U.S. acted lawfully in taking out an apparently unarmed Osama bin Laden, without instead capturing him and putting him through a criminal process of some sort with due process, etc.

(And for those who really want to know whether it was lawful or not, the short answer is yes.  The medium answer is he was a lawful target of a lawfully authorized kill mission during a war in which both he and the U.S. soldiers were combatants.  From all that we’ve read, it was done by the book.)

So on Thursday the WSJ reported that the Obama administration has changed the rules of investigating terror suspects, to permit interrogation without Miranda warnings in certain circumstances:

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

We made a few notes, hoping to get a minute to blog on the issue.  It just struck us as a stupid and unnecessary thing to do, if prevention of terrorist acts is the goal.  Miranda is just a protection affecting evidence that can be used at the trial of the person being interrogated.  That has to do with evidence of past crimes; it’s irrelevant to the prevention of future acts.  And if the goal is to gather evidence for a criminal trial, then it’s just unconstitutional.  It’s stupid no matter which way you look at it.  But our current never-ending trial is demanding pretty much every waking moment, and nothing got written.

Then yesterday the NYT published the text of the October 2010 FBI memo.  The relevant paragraph provides that:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

At the words “prompt presentment,” we (figuratively) slapped our forehead.  It all came back to us.  In May 2010, when the Obama administration first floated the idea, we’d already written about how stupid and unnecessary it was.  No wonder we knew what to think about it on Thursday — we’d already thought about it.

With any luck this trial will end in a week or two, and we’ll get back to a semi-regular blogging routine.  In the meantime, we’re going to cheat a bit and just cut-and-paste what we wrote last May.  It’s probably on point, and our thinking probably hasn’t changed much since then.  Here you go:

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The Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because they’ve been read their rights. Either someone’s going to talk, or they aren’t. Whether or not the police Mirandized them first has zero effect on whether someone’s going to answer police questions.

This is another instance of where the real world differs wildly from what you see on TV. On TV, when someone gets arrested, the cops recite the litany “you have the right to remain silent,” etc. In real life, at least here in NYC, that never ever happens. The first time someone gets Mirandized, if ever, is after they’re taken back to the precinct and it’s been determined that they’re going to confess. Cops are trained not to Mirandize people, in the unfounded belief that people clam up afterwards. As a result, they lose out on a lot of statements they actually could have used.

The person who clams up after being read his rights, or demands a lawyer, would have done so regardless. They already knew the magic words, and so they said them. For those who might have talked anyway, being read their rights actually makes them more likely to do so. They may not know the significance of theMiranda warnings, but by God they know they’re supposed to be read their rights, and once that happens it’s actually satisfying and in a way relaxing. Things are as they should be. Whatever they’re thinking, nobody suddenly thinks “oh my God, I’d better shut up now” once they’re read their rights. Doesn’t happen.

So it’s a rare instance of where real life ought to be more like TV. If, immediately on arrest, the cops said the magic litany, they’d be able to gather so many more confessions and statements that they’d be able to use at trial. There would be more evidence, not less. This is no less true in the case of terrorist subjects than anyone else. The Times Square suspect seems to be a typical case, still talking happily long after being Mirandized.

This leads to the second point: There is no reason to Mirandize someone if you’re not going to use the statements at trial in the first place. Nothing prevents the gathering of intelligence for national security purposes when that intel is not going to be used at the trial of the guy who’s spilling the beans. Miranda doesn’t preclude the gathering of intelligence, it only precludes using stuff at trial.

So seriously, if the administration wants actionable intelligence they can use to hunt down terrorists in Pakistan, the Miranda rule is not stopping them. You want to find out who controlled the terrorist, who the other members of his cell were, where the money came from, who supplied the training and equipment, then go to it. You don’t need it for trial, all you need is the evidence of the crime. Hell, you don’t need his confession at all. Just proceed with the criminal case as if the guy had never confessed. Use his statements to prevent future attacks and build investigations against other people (who won’t have standing to object) and try him with all the other evidence you got.

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What is the purpose of the Miranda rule, after all? It’s the same as the reason for the Fifth Amendment right against custodial self-incrimination. The only reason is to make sure the state doesn’t use its awesome power to override the free will of the individual, and force him to incriminate himself out of his own mouth.

If nobody’s forcing you to incriminate yourself, the law doesn’t care. It was your own free will, stupid as it may have been. But if you really do not want to say the words that will result in your punishment, then the state cannot extract those words by fear or intimidation or pain.

And when you’re in custody, you’re in an inherently intimidating situation. So the asking of any questions by the police when you’re in custody — or even raising an eyebrow or doing anything else likely to get an incriminating response — is unfairly taking advantage of the might of the state to force you to say the words against your will. Conceptually, it’s no different from Star Chamber or the Inquisition, and it’s what Americans have been dead set against from the get-go.

But note that this is the only thing we’re concerned with here. There’s no self-incrimination issue if your DNA is sampled for comparison to the DNA found at the scene, even if it convicts you. You weren’t actively convicting yourself, your free will was not involved, even if you objected to the DNA sampling itself. You weren’t providing facts out of your own mouth that you didn’t want to say. It’s not a Miranda issue.

And if someone else made statements that resulted in your conviction, it’s not an issue either. It wasn’t your free will being overridden, so you don’t get to complain about it, and you don’t get to have his statements suppressed. They can be used against you just fine (except of course for Bruton and other issues that aren’t really the point here).

So none of this is really the concern here when interrogating suspected terrorists. The point is not so much to gather evidence to use at trial — law enforcement already has it, or else they wouldn’t be interrogating the guy now. But there’s zero harm in simply reading the guy his right the instant he’s arrested, so when hedoes talk you can use it. Because he’s not going to decide not to talk just because you read him his rights.

We’re on the record already saying the Administration’s foolish for focusing on civilian criminal justice in dealing with foreign terrorists. But even if we agreed with that policy, we’d still have to conclude that they’re being extra-foolish here. It’s a bad idea.

Finally, don’t forget about all those unintended consequences that seem to happen more often than not. The Obama administration could wind up eroding theMiranda rule dramatically, by creating a precedent for carved-out exceptions via the Legislative branch. Something tells us that vote-hungry congressmen, always eager to look tough on crime, would jump at the precedent to take away even more of our Constitutional protections. It always seems like this happens most often as the result of good-intentioned administrations who ignore common sense in their rush to do “the right thing.”

So, like we said, this is just stupid. Holder’s wrong. Terrorism is no reason to relax Miranda.

Last week, the House passed a bill that would prevent the federal government from prosecuting Guantanamo detainees in civilian courts (by cutting off the funds to do so).  The Senate is now considering it as part of the 1,900-page omnibus spending bill.  This is largely seen as a reaction to the acquittal of Ahmed Ghaliani — the first Guantanamo detainee to be tried in civilian court — of more than 280 charges stemming from the bombings of U.S. embassies in Africa.

The Obama administration is fighting against it, with AG Holder writing a (fairly lame, in our eyes) letter insisting that we absolutely must use civilian courts to deal with terrorists and captured combatants.  Essentially, his argument is that civilian courts are a tool that has worked before, so why deny that tool to the executive branch and make it fight the bad guys with one hand tied behind its back?

Ignore the ham-handed attempt to co-opt a common complaint about the left’s frequent insistence on soldiers doing actual fighting with one hand tied behind their backs, lest they rile someone’s sensibilities.  It’s a dumb argument.  Guantanamo detainees didn’t commit crimes within the territorial jurisdiction of the United States.  Their acts are acts of war, or of transnational combat that is more like war than anything else.

Congress is gearing up to do the right thing, but for the wrong reason.  The principle should not be “we can’t do this because we might lose in court” — that’s not even a principle.  It’s just a weakling’s worry.  The principle should be “we can’t do this because it’s wrong.”

First off, soldiers are not cops.  Secret squirrels are not cops.  Their job is not to obtain constitutionally admissible evidence in order to secure a conviction in court some day.  Their job is to achieve a military end — secure some territory, disable the enemy’s troops, deny the enemy’s objectives, etc.  Let’s say a soldier just captured a guy who was shooting at him 30 seconds ago, and wants to find out where the prisoner’s buddies are and what they’re going to be up to next.  The Obama folks would require that soldier to treat that prisoner with all the rights due under ever-evolving Fourth and Fifth Amendment law — with the dire consequence that if he fails to do it perfectly, this guy is going to be released by a court, to fight another day.

Who’s asking whom to fight with one hand tied behind their back, again?

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The threshold issue, of course, is whether an enemy fighter taken on the field of combat has the same constitutional rights as an American citizen arrested for a crime.  The Holder approach would extend U.S. constitutional rights to everyone in the world.  By extending U.S. criminal jurisdiction so far, the associated rights and rules are extended as well.  This can be a problem.

Look at Miranda, for example.

First of all, the basic principle that underlies the Fifth Amendment protection here is that Americans don’t want the government to be able to override the individual’s free will, so that the individual convicts himself out of his own mouth.  It’s that whole Star Chamber thing.  It’s fine if you admit to something on your own, but it’s not okay if you didn’t want to say it, and the government forced you to say it anyway.

The government has awesome powers, so if the government has taken you into custody and you’re not free to leave, that’s a pretty intimidating circumstance right there.  If they try to make you talk while in custody, then that’s presumptively an attempt to override your free will.

So to ensure that anything you say is really voluntary, and not being forced out of you, the government has to make sure you understand that you don’t have to say anything, and that if you do say something they’re going to use it to try to convict you.  Once you understand that, and agree to talk anyway, you’re now presumptively acting voluntarily, and our Star Chamber concern goes away.

Now, the government is free to ask questions all they want without mirandizing you first.  They just can’t use your statements against you if they do that.  So they can ask questions without the Miranda warnings if they’re just going to get intelligence on other people’s crimes, and they don’t care if what you say is going to be admissible at your trial.

The problem is, how is anything this prisoner says not something you’d want to use at his trial?  Any useful intel is going to be proof that he knew it, that he was involved.  Miranda is always going to apply.

And if the 19-year-old soldier who captured him didn’t know his con law as well as the Supreme Court, he could well get it wrong.  And the guy could go free to wreak havoc another day.  As if he happens to be roaring his questions down the barrel of a rifle.

And most military and intelligence interrogation is specifically designed to override one’s free will.  That’s the whole point.  Your captive does not want to talk, for reasons of honor, loyalty, patriotism, the safety of his buddies, etc.  He’s probably been trained to resist interrogation.  This is not like a criminal suspect who admits his wrongdoing because he feels guilty, or to get it off his chest, or to do the right thing, or to get a lighter sentence.  Criminal suspects and military/intel detainees are two entirely different animals.  It is imperative that detainee interrogators do precisely what the Fifth Amendment doesn’t want police doing.

Well, hang on, we hear you saying.  What about the public-safety exception?  Aren’t police allowed to question without Miranda to get info so they can prevent a threat?  Wouldn’t that fit trying to get intel on what the terrorists or enemy troops are plotting?

No, it wouldn’t.  The public-safety exception only works if the questioning is absolutely necessary — there are no other reasonable options — to prevent an immediate threat to public safety.  Terrorist and combatant plans aren’t really immediate.  “Where did you plant that roadside bomb” might count, but “what are you guys planning to do next” doesn’t.

Also, if you extend the public-safety exception to cover these kinds of things, then you’ve pretty much swallowed the entire rule.  Because once you’ve gone beyond the necessity of an immediate present danger, pretty much any criminal case is going to fit the mold, and the Fifth Amendment goes out the window.

Well, you say, isn’t there an argument that Miranda doesn’t really apply to military or intelligence interrogations?  No, not a good one.  It hasn’t been litigated, so there’s no law on it, but whenever we extend the power to prosecute, we also extend the constitutional protections that go with it.  Failure to do so would undermine the very protections we hold most dear.

And none of this has really been litigated.  The law is nonexistent, or unclear at best.  Should soldiers and CIA operatives really have to be thinking about all this when they should be fighting a war.  We already have young JAG officers looking over the shoulder of commanders back at the base.  Should we have them out in the field okaying everything the soldiers would do before they can do it?  Soldiers aren’t cops.

It’s backwards to argue that civilian criminal prosecution must remain an option.  These are not civilian matters.  These are not crimes.  It’s not a mistake to preclude the feds from using this tool, because it’s not the right tool.  And make no mistake, the administration doesn’t merely want to keep the option open — they want this to be the only option.  Keeping with the tool analogy, they’re saying we should keep open the option of using a saw to drive a nail, when doing so would be not only wrong but dangerous.

On our main website, we wrote a brief primer on international law, mostly for our own enjoyment.  (The same reason why we write this blog, actually.)  To our constant amazement, it gets cited heavily around the internet, and has been on the syllabus of at least a couple law school classes.  So now we feel all obligated and stuff to keep it accurate and up to date.  At some point, we added a section on the subject of Lawfare.  Briefly put, Lawfare is the use of the law (yours or your opponent’s) as a tool of warfare, either to gain a military advantage, or to deny one to your adversary.  It’s too long to excerpt here, but you can read the section here, if you’re interested.

But if you’re really interested, an even better précis of Lawfare can be found in Gen. Mark Martins’ guest post this morning over at Lawfareblog.  His posts this week have been building up to this one, a great summary of the concept, with the depth of insight one would expect from the commander of the Rule of Law Field Force in Afghanistan.  Go read all of his posts, for sure, but this one is outstanding.

First, Gen. Martins sums up three competing definitions of the term.  ”Meaning A,” as he puts it, refers to the hijacking of Western sensibilities of justice and civil rights, by those who do not share such sensibilities, in order to undermine Western resistance.  ”Meaning B” is a wholly unrelated concept, an intellectual battle over the scope of national security law.  ”Meaning C” is a Western strategy that turns the cynical strategy of Meaning A on its head, an approach that applies the rule of law to all counterinsurgency tactics, thereby providing the legitimacy that is so important in a war of perceptions.

If he had stopped right there, this would have been a valuable enough contribution.  But he goes on to provide five clear observations about each of these three concepts, which makes it a must-read.  The first point is probably his best, that each definition contains a kind of hamartia or tragic flaw that could undermine it.  Meaning A cries “unfair,” which is sort of silly in the context of war, where ruses and propaganda are about as fair game as it gets, and without which few victories are ever achieved.  Meaning B, the contest of ideas alone, can bestow undeserved legitimacy and moral equivalence on the ideas of the enemy, which could lead to the very undermining of the principles one seeks to advance.  Meaning C, “by placing the law in service as a ‘tool’ of war, risks undermining the authority of law itself.”

Go over there and read the rest of it.  In the meantime, we need to go update our primer.

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UPDATE: Happy Thanksgiving!  Gen. Martins posted a followup this morning, “Lawfare: So Are We Waging It?” Written from Parwan, Afghanistan, it begins:

The week’s posts up until now—written on a Blackberry while we moved or found small spaces of time between engagements—position me finally to move from the definitional and philosophical matters I pondered yesterday in Khost to Jack’s September question: Do I consider counterinsurgency (COIN) in Afghanistan to be “lawfare.” The BLUF (“bottom line up front”), an expression used by each of the U.S. military services represented here in Parwan province and throughout our military around the world, is that yes, we are waging a form of affirmative lawfare.

I am confident enough in that to have provided the BLUF at the outset on Monday, even before trying to put into clear text and thus confirm my precise reasoning. The conclusion that we are indeed waging a form of lawfare is particularly true of the Rule of Law Field Force (ROLFF).  But there are important caveats, and I will draw illustrations from the preceding four days’ blogs to make the point.

The most obvious of the caveats is that we want no part of the perfidious lawfare described as Meaning A in my post of yesterday—except, that is, to combat those who wage it. Jack specifically distanced COIN operations in Afghanistan from this sense of lawfare, which is not only punishable under multiple articles of the Uniform Code of Military Justice, but is also regarded as dishonorable conduct within our uniformed ranks. Compliance with law is what legitimates the actions of our troops and separates their actions—sometimes necessarily violent and lethal—from what very bad people in criminal mobs do.

The post goes on to discuss the subject in more detail.  But we want to stop right there and shout out “he’s writing all this in between engagements in a goddamn war!”

The 9th Circuit judicial conference wrapped up yesterday.  Hundreds of lawyers spent the last several days discussing this and that in Maui, and finished up with a speech and some Q&A from Justice Kennedy.  He had a lot of different things to say, most of which are unremarkable (such as the Court will be “different” somehow with Stevens gone and Kagan there).  But one thing he said made us sit up and pay attention.

At a panel discussion earlier in the week, the conferees had decided that most terrorism cases ought to be tried in civilian courts, and not in military tribunals.  In his speech, Kennedy said he agreed.  He said that the use of military tribunals was an “attack on the rule of law,” and that it has failed.  “Article III courts are quite capable of trying these terrorist cases.”

He completely missed the point.  The courts have nothing to do with most terrorism, acts of warfare launched from abroad.  But Kennedy’s been in the courts for so long, that that’s his whole perspective.  Not only does he think the courts should try individuals suspected of engaging in terrorist acts, and fighting against the U.S. military on behalf of the terrorists, but he thinks the contrary position is an attack on the rule of law.  Law, he fails to realize, doesn’t enter into it. 

Well, no, that’s not entirely correct.  Law enters into it insofar as our rule of law and sense of fair play become weapons used by enemies without such civilized ways.  And he fails to realize that his attitude is precisely that which our enemies rely on.  His comments play right into their hands.

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As we’ve mentioned before, most terrorism is an act of war, not a home-grown crime.  Criminal procedure and warfare are two entirely different things.  The courts, criminal law and law enforcement are not in the business of proactively preventing violence from taking place; they only react, after the fact.  Law enforcement tracks down whodunit.  The law prescribes the rules that law enforcement must follow, and protects the rights of individuals who are suspected or charged with crimes.  It makes no sense to constrain the gathering of military intelligence and the carrying out of warfare by making it comply with the rules designed to protect the rights of criminal defendants.  It makes no sense to get the courts involved in the first place.

When we were a kid, we lived for a few years in Saudi Arabia.  We arrived a few months before the Grand Mosque in Mecca was seized and the American hostages were taken in Iran.  We were there for the start of the Iran-Iraq war, the shooting of the Pope, the murder of Sadat.  We left soon after the Hama massacre, Israel’s withdrawal from Sinai, the death of King Khalid, and the arrival of U.S. Marines in Lebanon.  It was an eventful place to spend one’s formative years.  One of the older kids we knew there desperately and sincerely wanted to become a terrorist.  We have no idea why — he was from a good background and neither poor nor stupid.  Let’s say he did.  He’d be in his mid-40s now.  If he’s over in Afghanistan, he might be managing part of the fight by al-Qaeda or Taliban groups against the U.S.  He might be a great source of intelligence if he’s captured.  He might be someone they’d never want to release back into the world.  What to do?

Let’s say he’s captured in a way that would totally have violated his Fourth Amendment rights if it had been a civilian arrest.  Let’s say everything known about him comes from sources it would be insane to reveal.  Let’s say he’s not bloody likely to disclose any of his own knowledge voluntarily.  If he’s to be tried in a civilian court, he’s going to go free, and no useful intelligence will be gotten.  If the goal is to punish him for his crimes, then the military and our intelligence services will have to dramatically reduce their effectiveness in order to protect rights he doesn’t even possess.  If the goal is instead to prosecute the war, gather the necessary intelligence to do so effectively, disrupt the enemy’s command and control, and prevent this guy from fighting again, then using civilian courts would frustrate all of that.

It’s bad enough that seasoned commanders in the field now have to have some wet-behind-the-ears JAG lawyer okaying practically every combat decision, to comport with international law that probably doesn’t even apply in the first place.  To add the constraints of our constitutional protections and the often convoluted jurisprudence that goes with it…  That’s not how wars are won.

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Some terrorist acts, a small minority, are perfectly appropriate to be prosecuted in the civilian courts.  These are acts, not by an organized enemy, but by one-off individuals.  Timothy McVeigh, or the Unabomber, or the D.C. sniper.  Serial killers and mass murderers.  They may have had a political cause underlying their actions, but they’re not warfare.  The police can track down whodunit, follow the rules, and the bad guy gets punished for what he done.

But that’s not what most Americans think of when they think of terrorism.  Terrorism means large organized groups of people who plan and commit acts of war, for the same reasons that any other act of war is committed.  Terrorism isn’t one guy losing his shit and shooting up a school.  Terrorism is a guy who’s been launched by Hamas or al-Qaeda or Farc, trained by them, armed and supported by them, to commit violence and mayhem on their behalf.  Terrorism is equivalent to war by a non-governmental organization.

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Now, war certainly can be fought in the courts.  The islamists are actually getting quite adept at “lawfare,” as we’ve also discussed elsewhere (and a little bit here, too).  It’s a neat trick, whereby those who do not have a rule of law, and despise those countries with a rule of law, nevertheless use that very law to achieve their policy ends. 

Kennedy’s comments, unfortunately, play right into their hands.  This is precisely the attitude that islamist lawfare relies upon.

It’s hard to avoid that attitude, of course.  We’re civilized, after all.  We do value the rule of law.  We do expect all of us to be subject to the law, no matter who we are.  It’s what separates us from tyrrany and despotism.  It’s what ensures our cherished freedoms and liberties and opportunities and protections.  It’s what makes us civilized.

Terrorist organizations and their supporters take advantage of that.  They use our courts and our laws and our protections as a weapon against us.  (To his credit, Obama shut down a little of that last week, by signing the libel tourism law, and that’s a good start.)  They call it “legal jihad” or “soft jihad.”  They use lawsuits to shut down opposition.  They cynically take advantage of their opponents’ sense of justice and fair play, to win concessions and control their message.

Kennedy’s comments can only give encouragement to such an enemy.

In the early days of the War on Terrorism, the Bush administration wanted to know what interrogation techniques were legal.  So it asked the DOJ’s Office of Legal Counsel for a memo on what could and could not be done to prisoners.  Staff lawyer John Yoo was tasked with doing the research and writing.  He did his research, wrote his memo, and that was that.

Well, no.  That was not that.  Some people didn’t agree with his legal reasoning.  More people (most of whom never even read the memo) shrilly lambasted it as a “war crime.”  We’re not particular fans of the memo ourselves (see our parody of it here), but we think it’s beyond stupid to call it a war crime, or even the slightest bit of misconduct.  He did what any lawyer in that situation is supposed to do: he analyzed existing law, and gave his opinion of what the law said.  The fact that other people disagree, even disagree strongly, doesn’t mean he did anything wrong.  The fact that his conclusions don’t comport with other people’s policies or principles still doesn’t mean he did anything wrong.  Even if he was wrong, that doesn’t mean he did anything wrong.

But now the 9th Circuit is struggling with the issue of whether Mr. Yoo can actually be sued for having written that memo.  Again, we’re no fans of the memo, but how he could possibly be sued for having given fair legal advice is beyond us.  Allowing this case to go forward, as we’ll discuss in a minute, would have enormously bad consequences for the government and the military.

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The case was brough by Jose Padilla, a.k.a. Abdullah al-Muhajir, who was arrested in 2002 for plotting a radioactive “dirty bomb” attack.  Padilla was in military custody for about four years, during which time he claims to have been subjected to sleep deprivation, stress positions, extended periods of light and dark, and other interrogation techniques.  Padilla filed a lawsuit last year against John Yoo, claiming that Yoo’s memos “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”  Almost exactly a year ago, the district court judge in San Francisco denied the motion to throw out the case.  Judge Jeffrey White said that “government lawyers are responsible for the foreseeable consequences of their conduct,” and that Yoo exceeded the normal role of a government attorney, in that he wrote both the Administration’s interrogation policies and the legal opinions justifying them.

Yoo appealed that decision, arguing that not only is there immunity here, but letting the suit go forward would interfere with the President’s war powers.  Liberals take note: the Obama administration is siding with Yoo.

Padilla’s argument to the 9th Circuit is that someone has to be held accountable for what happened to him.

Oral arguments were yesterday (listen here).  There’s a nice writeup on them over at Law.com.  Of the three-judge panel, Judge Raymond Fisher seemed clearly to be on Padilla’s side.  Fisher held that Yoo wasn’t merely acting as a lawyer, but was actually involved in setting administration policy.  Fisher also said that Hamdi v. Rumsfeld means the government doesn’t have total immunity here – it “doesn’t have a blank check, and that’s what we are wrestling with.”  (Where Fisher gets that from, we don’t know.  Hamdi only says that the government can’t hold a U.S. citizen indefinitely without some judicial review.)

Siding with Yoo and the government was Judge Pamela Rymer, who questioned whether the courts could even establish standards for “imposing liability on a non-policymaking lawyer.”  She said this case was like the Maher Arar case (for which the Supreme Court denied cert. yesterday), which dismissed a lawsuit against U.S. government officials for causing a man to be tortured.

The third judge, Rebecca Pallmeyer, didn’t really signal which way she was leaning.  Pallmeyer isn’t an appellate judge, she’s with the Northern District of Illinois, sitting here by designation.  She’s a Clinton appointee, and former administrative law judge for the Illinois Human Rights Commission.  That might indicate an innate leaning in favor of Padilla here, but really that’s the merest speculation.

-=-=-=-=-

We don’t see how Yoo can be sued here.  But let’s say the case does go forward.  Even then, we still don’t see how Padilla has a valid claim.  Sleep deprivation, stress positions, light/dark confusion — these are all long-standing interrogation techniques that have been used for decades.  They do not cause physical injury, though stress positions can be extremely uncomfortable.  Sleep deprivation and light/dark confusion are fantastic non-violent painless methods for breaking down an individual’s resistance to questioning. 

The whole point is to overcome someone’s free will, and get them to give you information they don’t want to reveal.  We don’t allow that for criminal prosecution.  The Fifth Amendment is specifically designed to ensure that people aren’t forced to convict themselves out of their own mouths against their will.  But criminal penalties and national security are entirely different.  Unlike criminal cases, in national security situations we want to overcome the individual’s free will.  If that can be done without causing serious physical injury, then great.

And the constitutional rights at issue only apply in the criminal sphere.  They don’t apply to enemy combatants or the conduct of war.  Pretrial detainee rights don’t apply to combat prisoners.  There may be some floor of constitutional rights that any individual is entitled to, but the criminal-justice rights are not that floor.

So we’d say there’s no legal claim to start with.  And even if there were, we can’t see how Mr. Yoo would be a proximate cause of any injury.  It’s not as if he ordered Mr. Padilla’s treatment.  He merely opined that it would be lawful.

-=-=-=-=-

But there’s a deeper policy danger here, if the court sides with Padilla.

Right now, the United States is waging the most careful warfare ever.  And lawyers are a big part of it.  When an officer gets some video from a Predator or a C-130, or a radio call from troops in the field, and that officer has to make an urgent call right then and there whether to authorize fire, he’s going to get a fast legal opinion first.  A military lawyer is going to be consulted for a legal opinion on whether the action is appropriate.

If Padilla wins, then those lawyers will not be immune from lawsuit for the consequences of their legal advice, even though they’re not the ones giving the actual orders.  That’s going to have a huge chilling effect on whether those lawyers will give the advice they believe to be best, if giving the right answer could get them in trouble.  The result would be advice that unnecessarily hamstrings military operations, resulting in prolonged combat and unnecessary casualties and expense.  Either that, or officers will just start ignoring the advice, with equally negative results.

Likewise, siding with Padilla would have a chilling effect on lawyers throughout the DOJ.  The government relies on them to give the best legal advice they can.  But if their best advice is politically unpopular, they’re going to shy away from it in order to avoid personal liability when some shrill person files suit.

Our government needs legal advice that is right, not legal advice that is politically convenient.  Knocking down the immunity of government lawyers from suit would only knock down the government’s ability to get the best advice it can.

And that’s just stupid.

[Edit: We forgot to add that this would also be a victory for the enemy, giving them yet another long-term weapon for their ongoing lawfare -- fighting those countries with a rule of law by using their own law as a weapon.  See more on this at our Primer on International Law here.]

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all three cases.  We’re going to be shocked and appalled if the statute survives the month.  (Read more of our commentary here.)  The feds also see this going the way of the dodo, as evidenced by their rush to add other charges to prominent cases after the first oral arguments in December.

Holder v. Humanitarian Law Project

This one also delves into the constitutionality of a law, this one intended to stop people from providing assistance to terrorists.  Like the honest services statute, however, 18 U.S.C. § 2339B(a)(1) is pretty darn vague.  It also seems to limit perfectly lawful speech, which would also be unconstitutional.  The feds (represented by nominee Elena Kagan) seem to want the law interpreted very broadly, to maximum effect, but during oral arguments the Supremes expressed deep problems with the statute.  It might get kicked back to the lower courts for more fine-tuning of the issues, though, rather than an outright invalidation of the law.

Dillon v. United States

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

McDonald v. City of Chicago

A follow-up to the Heller case a couple of years ago, which said as a matter of federal law that the Second Amendment recognizes an individual right to own a gun, which predated the Constitution.  In McDonald, the issue is whether that applies equally to the states as well, or whether the states can limit or regulate the right to bear arms.  The Court seems likely to narrowly rule that the 2nd Amdt. is incorporated into the 14th, and that the right’s a fundamental one that all the states have to respect, but not get into whether this limitation or that regulation is constitutional.  Those details can be dealt with in the lower courts on remand.

Magwood v. Patterson
Holland v. Florida

Habeas cases that we admit not reading up on when they were argued.  In Magwood, the defendant already won a federal habeas petition, and got resentenced.  Now he’s got a second federal habeas, challenging the new sentence on constitutional grounds.  He could have challenged the original sentence on those same grounds.  So the issue is whether this new petition is a “second or successive” claim that has to be rejected under the AEDPA.  Just on a gut level, we don’t think the defendant’s got much of an argument here.

Holland deals with a defendant whose habeas petition was filed too late, due to the negligence of his attorney.  The defendant wants the limitations period tolled equitably, in the interests of justice.  Florida says equitable tolling should never be allowed.  Seems like the Court’s going to allow it, but clarify when it’s available.

-=-=-=-=-

Also, we’re still waiting on an important case out of New York’s Second Department, which might create a new emergency exception to the warrant requirement.  Fingers crossed.

The Washington Post reports that the Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because they’ve been read their rights. Either someone’s going to talk, or they aren’t. Whether or not the police Mirandized them first has zero effect on whether someone’s going to answer police questions.

This is another instance of where the real world differs wildly from what you see on TV. On TV, when someone gets arrested, the cops recite the litany “you have the right to remain silent,” etc. In real life, at least here in NYC, that never ever happens. The first time someone gets Mirandized, if ever, is after they’re taken back to the precinct and it’s been determined that they’re going to confess. Cops are trained not to Mirandize people, in the unfounded belief that people clam up afterwards. As a result, they lose out on a lot of statements they actually could have used.

The person who clams up after being read his rights, or demands a lawyer, would have done so regardless. They already knew the magic words, and so they said them. For those who might have talked anyway, being read their rights actually makes them more likely to do so. They may not know the significance of the Miranda warnings, but by God they know they’re supposed to be read their rights, and once that happens it’s actually satisfying and in a way relaxing. Things are as they should be. Whatever they’re thinking, nobody suddenly thinks “oh my God, I’d better shut up now” once they’re read their rights. Doesn’t happen.

So it’s a rare instance of where real life ought to be more like TV. If, immediately on arrest, the cops said the magic litany, they’d be able to gather so many more confessions and statements that they’d be able to use at trial. There would be more evidence, not less. This is no less true in the case of terrorist subjects than anyone else. The Times Square suspect seems to be a typical case, still talking happily long after being Mirandized.

This leads to the second point: There is no reason to Mirandize someone if you’re not going to use the statements at trial in the first place. Nothing prevents the gathering of intelligence for national security purposes when that intel is not going to be used at the trial of the guy who’s spilling the beans. Miranda doesn’t preclude the gathering of intelligence, it only precludes using stuff at trial.

So seriously, if the administration wants actionable intelligence they can use to hunt down terrorists in Pakistan, the Miranda rule is not stopping them. You want to find out who controlled the terrorist, who the other members of his cell were, where the money came from, who supplied the training and equipment, then go to it. You don’t need it for trial, all you need is the evidence of the crime. Hell, you don’t need his confession at all. Just proceed with the criminal case as if the guy had never confessed. Use his statements to prevent future attacks and build investigations against other people (who won’t have standing to object) and try him with all the other evidence you got.

-=-=-=-=-

What is the purpose of the Miranda rule, after all? It’s the same as the reason for the Fifth Amendment right against custodial self-incrimination. The only reason is to make sure the state doesn’t use its awesome power to override the free will of the individual, and force him to incriminate himself out of his own mouth.

If nobody’s forcing you to incriminate yourself, the law doesn’t care. It was your own free will, stupid as it may have been. But if you really do not want to say the words that will result in your punishment, then the state cannot extract those words by fear or intimidation or pain.

And when you’re in custody, you’re in an inherently intimidating situation. So the asking of any questions by the police when you’re in custody — or even raising an eyebrow or doing anything else likely to get an incriminating response — is unfairly taking advantage of the might of the state to force you to say the words against your will. Conceptually, it’s no different from Star Chamber or the Inquisition, and it’s what Americans have been dead set against from the get-go.

But note that this is the only thing we’re concerned with here. There’s no self-incrimination issue if your DNA is sampled for comparison to the DNA found at the scene, even if it convicts you. You weren’t actively convicting yourself, your free will was not involved, even if you objected to the DNA sampling itself. You weren’t providing facts out of your own mouth that you didn’t want to say. It’s not a Miranda issue.

And if someone else made statements that resulted in your conviction, it’s not an issue either. It wasn’t your free will being overridden, so you don’t get to complain about it, and you don’t get to have his statements suppressed. They can be used against you just fine (except of course for Bruton and other issues that aren’t really the point here).

So none of this is really the concern here when interrogating suspected terrorists. The point is not so much to gather evidence to use at trial — law enforcement already has it, or else they wouldn’t be interrogating the guy now. But there’s zero harm in simply reading the guy his right the instant he’s arrested, so when he does talk you can use it. Because he’s not going to decide not to talk just because you read him his rights.

We’re on the record already saying the Administration’s foolish for focusing on civilian criminal justice in dealing with foreign terrorists. But even if we agreed with that policy, we’d still have to conclude that they’re being extra-foolish here. It’s a bad idea.

Finally, don’t forget about all those unintended consequences that seem to happen more often than not. The Obama administration could wind up eroding the Miranda rule dramatically, by creating a precedent for carved-out exceptions via the Legislative branch. Something tells us that vote-hungry congressmen, always eager to look tough on crime, would jump at the precedent to take away even more of our Constitutional protections. It always seems like this happens most often as the result of good-intentioned administrations who ignore common sense in their rush to do “the right thing.”

So, like we said, this is just stupid. Holder’s wrong. Terrorism is no reason to relax Miranda/.