Obama Goes to Court by Andrew C. McCarthy on National Review Online

Obama Goes to Court by Andrew C. McCarthy on National Review Online

Last Wednesday, Stephen F. Hayes of The Weekly Standard reported that the Obama administration has directed the FBI “to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan.” Rest assured this directive will not be limited to Afghanistan, for President Obama has unleashed the FBI on a “Global Justice” initiative. He is strategically erasing the line separating our domestic body politic — our governing arrangements and the legal privileges of citizenship afforded by sovereignty — from the international arena — the realm of politics, diplomacy, intelligence, covert operations, and military force, where the United States pursues its interests among other sovereigns and factions, many of which are hostile to America. In the Age of Obama, all the world’s a crime scene.



What looms ahead is the post-sovereign world: the U.S. no longer determining its fate and defeating its enemies but bowing, like a president before a Saudi king, to a “progressive” September 10 mirage known variously as “the rule of law” or “our values.” This mirage is designed to empower savages at the expense of our national defense — or, in leftist jargon, to level the playing field between downtrodden liberation fighters and the colonialist, imperialist powers that have exploited them.

The fact that you may not think yourself responsible for the Crusades or Jim Crow is beside the point, as is the fact that the New Order imperils us. The object of this morality play is neither justice nor security. It is to burnish the legend of leading leftists in the eyes of elite opinion-makers and to solidify their grip on power under the guise of enhancing “our reputation in the world.”

You may ask: All that from Miranda? Isn’t that just a bit overheated?

Not really. All journeys, great or ill-fated, must begin with a few steps. Obama’s provision of Miranda rights to terrorists captured overseas is not the first step; indeed, this procedure started long before Obama. But his enhancement and extension of it constitutes a gigantic leap forward. In small compass, Miranda is the story of the early Obama administration.

For years leftist visionaries have worked diligently, but mostly unnoticed, clearing the path for seismic shifts in governance (such as our understanding of criminals’ rights). The Left never capitalized on this spadework, because it lacked political support for radical departures from American law and tradition. Instead it bided its time, waiting for a leader audacious enough to plow ahead and deft enough, when called on it, to claim that he was merely following precedents set by his predecessors. The next thing you know, you’ve got the Mirandized battlefield.

The precedents begin with the Left’s criminal-rights revolution of the 1960s and 1970s. This was the formative Zeitgeist of Barack Obama, now nearly 48 years old, and his attorney general, Eric Holder, who is 57. For this movement’s devotees, the Warren Court’s 1966 Miranda ruling is totemic. The “rights” it manufactured are known to every American television viewer: A suspect must be warned, as dictated by Chief Justice Earl Warren’s 5–4 majority ruling, that he “has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

Miranda is a concoction of bad law and bad policy. Its criminal protections are sheer judicial inventions: Nothing in the Constitution mandates them. The Fifth Amendment forbids police to coerce a suspect’s confession; it does not require police to tell the suspect that his confession may not be compelled, nor does it interpose a publicly funded lawyer to shield the suspect from interrogation. Thanks to Miranda, however, a guilty suspect who has not been forced to speak can get his voluntary confession judicially suppressed — no matter how heinous the crime — if the police, though they’ve honored his rights, have failed to tell him about those rights.

Not only is the substance of this policy wrongheaded; it is a separation-of-powers violation, because it is up to Congress, not the Court, to strike the balance between the needs of the community and the protection of individual rights. Miranda is the paragon judicial usurpation of that function — for the benefit, frequently, of recidivist criminals at the expense of law-abiding Americans. Miranda’s purpose, the Court reaffirmed in Michigan v. Tucker (1974), was to “instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused.” As Justice John Marshall Harlan II wrote presciently in his Miranda dissent, “the decision represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell.”

CONGRESSIONAL CURE
Congress did attempt to undo the damage. Though the Supreme Court has claimed a power to be the ultimate arbiter of the Constitution’s provisions, Miranda was not an attempt to expand or revise the core Fifth Amendment right against compulsory self-incrimination; rather, it fashioned a federal common-law “prophylaxis” around that right. Congress is empowered to undo such judicial legislating, and that’s exactly what it did two years after Miranda. It enacted section 3501 of the federal penal code, which permitted trial judges to consider all attendant circumstances — including whether Miranda advisories or something like them were given — in determining whether a confession was voluntary. Thus the absence of Miranda warnings would not necessarily invalidate a confession. If, for example, it were clear that a suspect understood his right to remain silent (because, say, he had been arrested on numerous other occasions), his confession might well be found voluntary and admissible, even if the police had failed to recite the talismanic Miranda incantation.

Section 3501 was a better prescription than Miranda. It suggested that police advise a suspect of his rights (if they did, that would usually be enough), but it did not punish the public by suppressing valuable evidence unless the Fifth Amendment privilege against coercion had actually been violated. Moreover, it added a layer of protection for defendants. If the judge decided a confession was admissible, the defendant would get a second bite at the apple: He could seek to persuade the trial jury that his statements had been coerced and were thus unreliable. The community would not be denied evidence, but its representatives, the jury, would be encouraged to give the evidence its proper weight — including no weight at all, if the police had bumbled badly enough.

But the Justice Department, beginning in the Nixon administration, treated section 3501 as a nullity, incorrectly regarding Miranda as the controlling law. The states followed suit. Occasionally through the decades, the Supreme Court, particularly Justice Scalia (no pushover for the government in criminal cases involving rights guaranteed by the Constitution), would wonder aloud why the Justice Department was not relying on section 3501 to save confessions that Miranda had excluded. “During an era of intense national concern about the problem of run-away crime,” Scalia wrote in 1994, this policy “may have produced . . . the acquittal and the nonprosecution of many dangerous felons.”

That sounded right to me. The following year, in prosecuting a group of terrorists, I successfully argued in court that a defendant’s post-arrest statements should be admitted under section 3501. Even if one bought the jihadist’s far-fetched story about not being advised of his rights, I contended, his absurdly false exculpatory statements were obviously voluntary, and thus admissible under section 3501. The judge permitted the jury to hear the statements, and there was no appeal on this point — appeal being a salient matter, for reasons we’ll get to presently.

I did not intend this as a renegade maneuver; I just assumed the Justice Department had been overlooking 3501. This may strike the reader as unlikely, but it would not surprise anyone who has worked at the Justice Department. By the mid-1990s Miranda was so entrenched in federal practice that all our agencies employed it, and when an investigator failed to provide the warnings, it was generally due to one of several Miranda exceptions (e.g., questioning during a public-safety threat) that the Supreme Court had recognized over the preceding 30 years. I assumed prosecutors were unfamiliar with 3501, as I had been, because it just didn’t come up that often. But I was wrong. There was an anti-3501 policy. That became clear in 1997.

That January, $876 was stolen from the First Virginia Bank in Alexandria by an armed robber. The getaway car’s plate number led the FBI to Charles Thomas Dickerson, in whose home agents found hundreds in cash spread on a bed, as well as a .45-caliber handgun, ammunition, robbery masks, and dye-stained money from other heists. Dickerson made damaging admissions about his role in the robbery but later disputed an FBI agent’s testimony that he’d been given Miranda warnings before confessing.

The trial judge credited Dickerson’s claim and suppressed the confession. The prosecutor, however, moved for reconsideration, providing a sworn statement from a second FBI agent who had witnessed Dickerson being read his Miranda rights plus a written waiver, in Dickerson’s own hand, acknowledging he’d been advised of his rights. The judge declined to consider this evidence, saying the government should have presented it earlier. The prosecutor, however, countered — much as I had argued in 1995 — that even if one believed the dubious allegation of Miranda default, the confession was palpably voluntary and thus admissible under section 3501. The judge was unmoved.

WHOSE SIDE ARE YOU ON?
Here we arrive at the key detail about appeals. At the trial-court level, a federal prosecutor is supervised only by his direct boss, the district U.S. attorney. But if the prosecutor wants to appeal, permission must be obtained from the Justice Department. The Virginia U.S. attorney’s office sought permission to appeal the Dickerson case in 1997. That’s the year Eric Holder became the Clinton administration’s deputy attorney general — DOJ’s number-two official, running the department’s day-to-day affairs. This was a particularly influential post in the final years of the Clinton administration because Attorney General Janet Reno had been diagnosed with Parkinson’s disease in 1995.

DOJ granted permission for the appeal, but there was a hitch: The Justice Department would not allow reliance on section 3501. In fact, the Virginia office was required to disclaim reliance expressly (in effect, refuting its own trial prosecutor). The government, however, can control only its own positions and arguments. It may influence, but it cannot control, what a court decides is relevant. Ignoring the Justice Department, the Fourth Circuit decided that 3501 was relevant. The appellate court declined to disturb the district judge’s finding of a Miranda default, but it threw the Justice Department for a loop by finding the confession voluntary under the Fifth Amendment and admissible under 3501.

Predictably, Dickerson appealed. That put the Reno/Holder Justice Department in a tight spot. Would it fight to defend the government’s case against an armed bank robber and to vindicate a congressional statute (3501) that, besides being presumptively constitutional, was perfectly defensible? Or would it abdicate the law-enforcement position in order to defend Miranda, the towering symbol of the Left’s criminal-rights revolution?

In 1999, I trooped to Washington with a contingent of prosecutors experienced in national-security and violent-crime cases. We implored the Justice Department to fight for its bank-robbery prosecution and make the case that 3501 was a valid and prudent enactment — faithful to the Fifth Amendment’s proscription against coercion, while maximizing the public’s interest in preventing dangerous offenders from escaping justice.

Holder’s department turned a deaf ear. DOJ not only refused to defend 3501 and its bank-robbery case; it filed an amicus brief in support of the bank robber. The Supreme Court actually had to appoint a special counsel to take up the law-enforcement position against the combined forces of the defendant and the Clinton Justice Department.

Not surprisingly, the Justice Department’s abdication had a stark effect on the Supreme Court. The Court’s four liberal justices sided with Dickerson, as expected, and the unpredictable duo of Anthony Kennedy and Sandra Day O’Connor slid into the pro-Miranda camp as well. In what I’ve always believed was an effort to minimize the damage, Chief Justice Rehnquist voted with the majority, a move that — because of his chief-justice status — enabled him to write the decision, which was narrower than what the liberal bloc would have produced. In Rehnquist’s decision, issued in 2000, Miranda was maintained not as a vindication of judicial activism but as a grudging nod to stare decisis, the principle of deferring to prior decisions that the justices occasionally invoke to maintain even faulty rulings on which they believe (or at least claim) our society has come to rely. Justices Scalia and Clarence Thomas dissented.

The effect of the decision, however modestly intended, was profound. For 30 years, the Supreme Court had resisted the notion that its Miranda invention was an integral part of the Fifth Amendment. That was why it had been so easy to fashion exceptions: The lack of Miranda warnings did not automatically equal unconstitutional coercion. But Dickerson cast that resistance aside. Miranda, not 3501’s sensible totality-of-the-circumstances test, would henceforth govern the admissibility of all statements in court proceedings. Outside recognized Miranda exceptions, any person vested with the Fifth Amendment right against coercive questioning could now plausibly claim full Miranda rights.