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CounterPunch
December
10, 2002
Coercive Interrogation
You Have No Right to Remain Silent
by JOANNE MARINER
Anyone who has ever watched a cop show knows that
you have a right to remain silent in response to police questioning,
and that if you knowingly waive that right, "anything you
say can be used against you in a court of law." The Miranda
warnings, named after the 1966 Supreme Court case that gave rise
to them, are deeply embedded in both legal and popular culture.
Given the warnings' established place
in police procedures, TV cops and real-life police officers might
be surprised to learn that the first Miranda right is not a right
at all, at least according to the government.
In a case argued before the Supreme Court
last Wednesday, Deputy Solicitor General Paul Clement explained
that coercive interrogations in no way violate the rights of
detainees. He claimed that the constitutional violation at issue
in Miranda v. Arizona occurs only in court, if and when the prosecution
tries to introduce a suspect's coerced statements as evidence.
Put bluntly, you have no right to remain
silent. What you have, instead, is a right not to be criminally
prosecuted on the basis of your coerced statements. If the government
is correct, then the language of the Miranda warnings is wrong.
Shoot First,
Ask Questions Later
Nobody disputes that the case currently
before the Supreme Court involves coerced statements. Oliverio
Martinez, the 34-year-old farm worker who brought the case, was
interrogated in an ambulance and a hospital emergency room after
being shot five times by police.
"Ay! I am dying! . . . What are
you doing to me?" an agonized Martinez is heard to cry out
on a tape recording of the interrogation. Despite Martinez's
insistence that he is in no condition to talk, the police sergeant
does not stop his questioning. "If you are going to die,
tell me what happened," urges the sergeant, who is now a
defendant in Martinez's damages suit.
The police sergeant's tenacity in continuing
the questioning--he persisted on and off over a 45 minute period--may
have stemmed from a concern that his fellow officers could be
found responsible for wrongfully shooting Martinez.
The shooting occurred after police stopped
Martinez when he was riding his bicycle home from work one day.
The officers, who were questioning another man, ordered Martinez
to dismount. Martinez, who was never criminally charged for the
incident, had in his waistband a sheathed knife that he used
to cut strawberries. When one of the officers noticed the knife,
he wrestled Martinez to the ground, and a scuffle ensued. The
other officer, who allegedly believed that Martinez was reaching
for his partner's gun, shot Martinez five times at point-blank
range.
"O.K. You're dying. But tell me
why you were fighting with the police," demanded the police
sergeant during his interrogation of Martinez. Repeatedly, as
he pressed on with the interrogation, the sergeant asked the
injured man to admit that he had tried to grab the officer's
gun.
Martinez is now blind and paraplegic,
but the Oxnard police department, a defendant in his civil suit,
refuses to compensate him for his injuries. Nor did the three
officers involved in the shooting ever face disciplinary sanctions.
The Dispensable
Right to Silence
Besides a claim of excessive force, Martinez's
suit against the police alleges that his Fifth and Fourteenth
Amendment right to be free of coercive interrogation was violated.
The defendants--whose arguments are seconded by the federal government
in a brief submitted by the Solicitor General--argue that the
coerciveness of the interrogation is simply irrelevant, given
that Martinez was never criminally prosecuted.
Under the rule that the government proposes,
defendants have a right not to have their coerced statements
used as evidence against them in a criminal prosecution. But
they have no right, in itself, to remain silent in the face of
police questioning. The constitutional violation, in the government's
view, only occurs during the subsequent criminal proceeding;
it does not occur during the questioning itself.
If the Supreme Court upholds the government's
preferred reading of the Constitution, then it means that police
will have to decide, before starting to interrogate a suspect,
which of two possible routes to take. As long as the suspect's
statements will not used to prosecute him or her, the police
are free to rely on coercive questioning to obtain the desired
information. But if the police believe that the suspect's statements
will be necessary at trial, then they need to advise the suspect
that he or she is free to remain silent.
To speak of a "right" to remain
silent, when the purported right exists at the discretion of
the interrogating officer, would be an exaggeration.
The Case's
Practical Implications for the Future
As it would play out in practice, this
weighing of possible options seems a far cry from the bright-line
requirement that the Miranda decision was meant to establish.
And the government's suggested rule might, as civil rights advocates
have warned, open the door to increased police reliance on threats
and violence.
The new rule could also spark tensions
between police and frustrated prosecutors, who--if police choose
to exercise their discretion to conduct coercive interrogations--would
be stuck with a rash of statements that are inadmissible in court.
But because police interrogations are so often conducted precisely
in order to obtain incriminating statements from the suspect,
prudent police departments would probably continue to train their
officers to give Miranda warnings as a matter of course.
It may become clear, in retrospect, that
the real importance of the Supreme Court's decision in this pending
case has little to do with normal police actions. Instead, the
impact of the Court's ruling might primarily be felt by a very
specific group of suspects: those held for alleged involvement
in terrorism. This case could, in fact, be the first of what
may end up being a series of Supreme Court decisions legitimating
an inquisitorial approach to dealing with terrorism detainees.
It is probably no coincidence, therefore,
that Paul Clement, the deputy solicitor general who argued the
government's position in the present proceedings, also handles
his office's involvement in the cases of Jose Padilla and Yaser
Hamdi, the two American "enemy combatants" currently
held in indefinite, incommunicado detention.
The Coercive
Interrogation of "Enemy Combatants"
At present, the legal status of terrorism-related
detainees is far from settled. It is obvious, nonetheless, that
the Bush administration's preferred approach is generally to
designate suspected terrorists as "enemy combatants,"
not criminals. The effect of the designation is that the suspects
are not, in the administration's view, persons who benefit from
any of the basic procedural protections provided under the criminal
law.
Viewed as a whole and in its details,
the administration's approach to the detainees is an inquisitorial
one. Lawyers--or any other potential advocates for the rights
of the detainees--are excluded from the process. The executive
branch has exclusive power to detain the suspects, interrogate
them, assess their responses, and - if, and only if, it is satisfied
that they are not implicated in terrorist acts - release them.
Under any fair assessment of their situation,
the detainees held as "enemy combatants" are being
subject to coercive interrogation. (Granted, this is a difficult
assessment to make, given that no independent monitor has access
to the detainees, but it is clear that the conditions of their
detention are inherently coercive, and that the government has
not been advising them of any right to remain silent.)
Indeed, in legal briefs submitted to
the federal courts reviewing the detentions, the administration
makes specific reference to the need for intelligence collection.
And as these briefs emphasize, successful interrogations require
the creation of an atmosphere of "dependency and trust"
between detainees and U.S. intelligence-gathering personnel.
If Miranda were interpreted to extend
outside of the scope of criminal prosecutions, it might be understood
to lend some protection to the detainees. It is thus unsurprising
that at oral argument on Wednesday in the Martinez case, Justice
Antonin Scalia specifically questioned Martinez's counsel about
the case's implications for fighting terrorism.
What "Shocks
the Conscience"?
So, assuming that Miranda's protections
are inapplicable, are there any constitutional limits on the
government's power to coerce statements from detained suspects?
According to the Solicitor General's brief in the Martinez case,
there are. But they give official interrogators considerable
leeway.
Outside of the criminal law context,
asserts the government, the Constitution only prohibits official
misconduct "so brutal and so offensive to human dignity"
that it "shocks the conscience."
One assumes, hopefully, that the torture
of detainees would be deemed to fall within this category. And
I should note here that there is no evidence that any of the
so-called enemy combatants has been subject to torture. (I should
also note, however that a few so-called civil libertarians like
Alan Dershowitz are quite prepared to sanction the torture of
terrorist suspects (but query as to whether he has a conscience
left to shock).)
Still, it's depressing to think that
outright brutality is now the test. We seem to have come a long
way from Miranda, and the optimism that imbued the Supreme Court's
1966 opinion.
Announcing its ruling in Miranda, the
Court spoke in the broadest possible terms: "Today, then,
there can be no doubt that the Fifth Amendment privilege is available
outside of criminal court proceedings, and serves to protect
persons in all settings in which their freedom of action is curtailed
in any significant way from being compelled to incriminate themselves."
Today, in contrast, there are increasing
doubts about the reach of all of our constitutional rights.
Joanne Mariner
is a human rights lawyer based in New York. She can be reached
at: mariner@counterpunch.org
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