Does the Right to a Lawyer Disappear with Miranda?

Charlie Savage has a story explaining what the Administration means when it says it wants to “modernize” Miranda warnings. As he explains, it’s not just or even primarily Miranda warnings that are the problem (according to the Administration), but rather the requirement that a person arrested without a warrant be brought to court promptly.

President Obama’s legal advisers are considering asking Congress to allow the government to detain terrorism suspects longer after their arrests before presenting them to a judge for an initial hearing, according to administration officials familiar with the discussions.

If approved, the idea to delay hearings would be attached to broader legislation to allow interrogators to withhold Miranda warnings from terrorism suspects for lengthy periods, as Attorney General Eric H. Holder Jr. proposed last week.

The goal of both measures would be to open a window of time after an arrest in which interrogators could question a terrorism suspect without an interruption that might cause the prisoner to stop talking.

But there are two things missing from Savage’s article (and I don’t think it’s through any fault of his). First, an explanation of what the problem is.

I mean, even the Republicans haven’t been complaining about alleged terrorists appearing in court less than 48 hours after they were captured. And there are no allegations that–say–Najibullah Zazi or Umar Farouk Abdulmutallab stopped talking because they got trotted out before a judge shortly after they were captured. And as far as Faisal Shahzad? As Savage points out, he reportedly waived his right to arraignment.

Officials have said that Mr. Shahzad waived those rights, as well as his right to a quick initial hearing before a judge, and has continued cooperating with interrogators. But, worried that suspects in future cases may not do likewise, or that law enforcement officials will be confused about the rules, the administration has decided to push for changes.

In other words, Shahzad is–like the other recent terrorist suspects mentioned–evidence that this may not be necessary! (Note, reporters took notice of the delay in Shahzad’s arraignment–see here and here, for example.)

Then there’s the second thing missing from this discussion. Is anyone wondering where the discussion of the right to an attorney is? Who is Shahzad’s attorney?

The way it works, bmaz tells me, is you’re arrested and you’re brought before the judge (either to be charged or arraigned) and if you don’t have a lawyer, the judge makes sure you have one.

And as of right now, PACER doesn’t list an attorney for Shahzad.

Let’s return to the Miranda warning again:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?

So I’m curious: the Administration wants to “modernize” Miranda. They want to postpone bringing alleged terrorists before a Court (though it’s not clear why). Are they, by delaying court appearances, trying to at the same time delay the time when alleged terrorists get assigned lawyers? Are they trying to dissuade alleged terrorists from having lawyers?

One final thing. The big example where–if you ask terrorism prosecutors–the requirements of due process have  been a problem, of late, was the Hutaree defendants. After getting public defenders, their lawyers challenged their detention without bail (which is under appeal). This big push to deprive alleged terrorists of due process–will it apply to domestic terrorists, with whom they’ve had such problems recently?

41 replies
  1. Becca says:

    Wow… not just the right to an attorney, but also the right to a speedy hearing, to be charged with an actual crime, and the right to face one’s accusers in a court of law. In short, they’re trying to make indefinite detention without legal review or recourse the normal course of events.

    All with the mere assertion, “This person is a terrorist.”

  2. bmaz says:

    A defendant’s Sixth Amendment right to counsel attaches at his first appearance before a magistrate, whether or not the prosecutor is also on hand, the Supreme Court stated in Rothgery v. Gillespie County Texas; so, yes, this very much involves a defendant’s right and access to counsel. See also Montejo v. Louisiana as to waiver of 6th Amendment rights as opposed to 5th Amendment rights.

  3. prostratedragon says:

    A well-elucidated model of the bloody-mindedness of the “elites” in this country when they decide they want something:

    The Art of the Steal,

    in which decades of effort are devoted to breaking a trust of the Commonwealth of Pennsylvania for the apparent purpose of destroying an all ready dead man. When you have a lot of money you can afford that kind of “patience.”

    The same cast of mind has been at work on the guarantee of rights, including rights of accused people, before law since long before 2001, and in the present day it also seems some of the same tactics.

  4. Hmmm says:

    Pretty calculating. Musta had this idea on the shelf, and dragged it out when the Times Square attack attempt happened…? Using Shahzad as a test case to try to normalize this abomination as the new reality?

    (Not to harp, but in addition to that I’m still wondering whether this relates to the unseen process by which the decision is made to treat any given detainee via the courts, via military commission, or to disappear them into the gulags.)

  5. janinsanfran says:

    I may have this wrong, but I believe Tony Blair’s government got the uncharged detention period in the United Kingdom up to 42 days. The current coalition came in claiming to be critical of this, but we’ll see.

    Last I knew, in Japan suspects can be held and interrogated for 23 days before being charged. Story here.

    We’re joining the rest of the world in this. Awful.

    • bmaz says:

      Most of my life, I would not have believed the Supreme Court would bite off on this junk; but I think the Roberts Court very well might. One thing is almost certain, and that is John Paul Stevens would be steadfast and vocal in opposition; whereas Obama’s girl Kagan will sign on in a heartbeat. Obama’s willingness to trash the rule of law and Constitutional principles of due process this country was built on is shameless. Simply amazing this is occurring under the reign of the great Democratic hope.

      • freeman says:

        Yesterday I read a new take on the effect of Kagan on the court as regards these issues from Michael isikoff of Newsweek .

        Since Kagan has been the hatchet-man for the administration in all this for the last year and a half , she would not only be replacing probably the strongest voice for civil liberties on the court , she would also have to recuse herself from these case because of her arguing them in her job as solicitor general .

        This would remove the need for her vote on the court entirely .

        • Arbusto says:

          While less than thrilled with Kagan as a future liberal choice on the court (not thrilled with many of Obama’s actions or inactions) had two thoughts/questions. Hopefully clerking for an icon on the Court, Thurgood Marshall, she was vetted by him as not only a stellar legal mind but also liberal. Lastly, while I believe a poor choice for Solicitor General, for lack of litigation experience, she would be required to litigate the Administrations position, not her own, necessarily.

          To the legal beagles in our ether, why should Kagan recuse herself in any cases from her SG office up for review since it’s not the law, especially since august Justice Scalia fails to?

      • BoxTurtle says:

        Ya know, in the 1950’s the south would have LOVED to be able to treat blacks the way Obama wants to treat scary brown moslems.

        Somebody ought to remind him of that.

        Boxturtle (Obama needs Scrooged. With MLK as the ghost of Xmas past)

          • BoxTurtle says:

            I was seeing any detainee who died under US interrogation as the ghost of Xmas present.

            No future, so no ghost of Xmas future. Or perhaps we use Glen Beck.

            But MLK can’t be Obama’s role model. He simply can’t.

            Boxturtle (Unless Obama is as flexable about role models as he is about everything else)

    • JamesJoyce says:

      Why not remove all the requirements of law to hold government in check? Just ignore the restrictions placed on government designed to preclude Abuses of power? Talking of a slippery slope? Dismantle constitutional protections under the guise of protections, when the only thing being protected is corporate bottom line with laws usurping CONSTITUTIONAL LAW as designed by the framers.

      This is Jefferson’s warning once again, for the deaf dumb and blind!

  6. boltbrain says:

    Been reading on the French Revolution lately; what the hell, Upton Sinclair wrote it can’t happen here right? Still, I know where I should be reading next, but I don’t want to break an internet law …

    Savage’s article is pretty well thought out, especially in how it shows compromising one right bleeds into compromising another, and another, and so on, then eventually you get to closed courtrooms. Once again I don’t want to break an older precursor to Godwin’s law, but it rhymes with where Kenneth Starr used to hang out when he was a judge. Big fan of Elena Kagan; comforting.

    There’s ways to do all this with some assurance of halfway decent safeguards, but what with exceptionalism and all, I don’t expect there’s many around Holder and Obama interested along those lines. Other countries hold commissions and public hearings and such, so everyone gets to know; but here that’s some kind of problem.

  7. timtimes says:

    I get so confused.

    We can’t seem to get any traction on the idea that torture is an abomination to our American values (let alone of mankind). That doesn’t seem possible in my world view, especially given…..

    There is evidence that the testicles of toddlers were abused as an encouragement for their parents to give up info on the location of imaginary WMD’s. Even that didn’t shock the conscious of a supposedly Christian nation. By all accounts, the torture and abuse of innocents has not stopped, merely changed location.

    Recently, our ‘Hope and Change’ president gave himself the right to execute citizens anywhere in the world.

    Miranda? Pffft. Gone without a whimper it would appear.

    What the hell is going on in America? Is there no time for reflection on these barbaric practices. I wouldn’t have thought that the privacy policies (or lack thereof) of Facebook would be enough of a distraction that folks would otherwise turn off their critical thinking. I would be wrong.


    • PJEvans says:

      The media sure aren’t reporting any of that, so no, it’s not going to get any traction. When it starts being [honestly] reported on Faux and CNN, then people will take notice.

    • gesneri says:

      Apparently, it was easy for us to hold enlightened views before we were attacked in the “homeland”. Once that occurred, all bets were off. What’s that old saying about character being shown by how you behave under pressure, not how you act when times are good?

  8. freepatriot says:

    I know from personal experience that it is almost immpossible to fire a court appointed attorney

    unless you can prove misconduct bordering on criminality, there is almost no way a defendant can refuse an attorney’s services once he has been appointed

    just proving that my attorney was stupid and wasn’t paying attention to my case wasn’t enough (the stupid fucker didn’t even know what I was charged with). I had to prove that the outcome of the trial would be different (before the trial was over). It’s an impossible standard that can’t be met

    so there’s that

    High everybody

  9. Hugh says:

    This is somewhat related from my Obama scandals list:

    47. On May 26, 2009, in a 5-4 decision the Supreme Court in Montejo v. Louisiana overturned the 23 year precedent of Michigan v. Jackson. Jackson said that custodial interrogation of a Mirandized suspect by law enforcement, with the consent of the suspect, was perfectly fine, but at the point a court appointed an attorney such interrogation must be suspended until the accused had a chance to consult with his/her attorney. This seems like a very commonsense kind of rule. It was, however, overturned by a radically conservative Supreme Court. What is less known is that Obama’s Department of Justice (DOJ) filed an amicus brief supporting the overturning of Jackson arguing principally that it wasn’t necessary given 5th Amendment (Miranda) protections. But as Jackson was based on the 6th Amendment, it is very unclear how overturning it was anything other than a weakening of those 6th Amendment protections, i.e. the right to “assistance of counsel for his defense.”

    I assume this Court has some lower limit for what the rights of prisoners are, but I don’t know what it is. This radically conservative SCOTUS has been in favor of restricting rights of accused in general and expanding police powers in terrorism cases in particular.

    • bmaz says:

      Yes, as I briefly noted @2 above, the two current seminal cases impacting here are Rothgery and Montejo. I will say this, as much as I am not altogether crazy about Montejo because I think it will be extrapolated out in very bad ways, there is some arguable justification for allowing law enforcement to inquire as to whether a suspect would reconsider his invocation. Also, I do not think we have close to enough facts to understand how Shahzad fits in to the Rothgery/Montejo framework.

    • john in sacramento says:

      I think this needs to be highlighted

      47. On May 26, 2009, in a 5-4 decision the Supreme Court in Montejo v. Louisiana overturned the 23 year precedent of Michigan v. Jackson. Jackson said that custodial interrogation of a Mirandized suspect by law enforcement, with the consent of the suspect, was perfectly fine, but at the point a court appointed an attorney such interrogation must be suspended until the accused had a chance to consult with his/her attorney. This seems like a very commonsense kind of rule. It was, however, overturned by a radically conservative Supreme Court. What is less known is that Obama’s Department of Justice (DOJ) filed an amicus brief supporting the overturning of Jackson arguing principally that it wasn’t necessary given 5th Amendment (Miranda) protections. But as Jackson was based on the 6th Amendment, it is very unclear how overturning it was anything other than a weakening of those 6th Amendment protections, i.e. the right to “assistance of counsel for his defense.”

      I hit on this too, thanks to a heads up from Christy, here, and after the ruling, here

  10. Margaret says:

    Let them “modernize” away at Miranda. It’s a REMINDER. It doesn’t CONFER rights. I submit that it’s every citizen’s responsibility and indeed in their own best interest to know their rights as conferred by citizenship and reminded by Miranda.

    • dakine01 says:

      Actually the Rights are not just conferred by citizenship; that’s why they’re called Human Rights.

      But we are dealing with folks who think they and they alone are the ones who should be allowed to determine who and what are rights versus privileges that can be taken away

    • boltbrain says:

      It could be a reminder for some; but it’s mostly for your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.

      It’s no coincidence Miranda comes from the same atmosphere that also brought the War on Poverty. That was the first “Concept War”. I suppose one can argue all those since have been crusades against that one and the objects of its lofty ambitions: Reagan’s against Regulation, George H.W. Bush’s on drugs, George W. Bush’s on terrorism, Grover Norquist’s against governance, the Tea Partiers against rationality and toleration. They all seem to share a view of the poor as the enemy.

      That’s part of why I think Miranda is so important, on the one hand, and at the same time so vulnerable in cases like Shahzad. The guy’s up against some serious prejudices in the here-and-now, and he ran into some pretty common life disappointments (not trying to diminish their impact on individuals, but they all seem garden variety); but it’s pretty available to distinguish him from those for whom Miranda aimed.

      We’re just not able to hold an open public dialog on this sort of thing. The framework is there in theory, but not the institutions, at least not anymore, nor the determination and focus to revive those or set up new ones. So that leaves us to the tender mercies of the single most dysfunctional institution, the Senate.

  11. mookieblaylock says:

    are they getting prepared for the breakdown? Gotta make sure they don’t have any evil doers breaking into the gated communities because they are desperate and starving

    • PJEvans says:

      Why should people break into the gated communities for food? All the food stores are outside them. It’s the people inside those gated-and-guarded developments who will be trying to break out, after we barricade their gates so they can’t drive out.

  12. Jo Fish says:

    There are two possibilities here: Obama the “Constitutional Scholar” paid someone to do his work and take his classes in law school or two, he’s narcoleptic and slept through all those classes in law school and got his degree anyhow. /*s

    Seriously, how does anyone who studied the US Constitution and taught the same subject to hundreds of budding young legal minds, eventually come to this sort of legal crossroad. I am now waiting for Imperial Stormtroopers in their white plastic suits to come take me away for daring to dissent.

    • thatvisionthing says:

      I got an e-mail from Obama, introducing me to Kagan, that started out “Take it from a former constitutional law professor” — and I lost it. I actually replied to that junk mail, and when I got the obligatory “We can’t hear you” reply, I unsubscribed. (Wow, that’ll show… no one.)

  13. JohnLopresti says:

    Petition for a writ of certiorari p.5 (22/52):

    **When he was finally able to meet with a lawyer—ten days after he was detained—defendants hastily scheduled an extraordinary six-hour proceeding the very next day—starting at 9 PM on a Sunday evening—ostensibly to examine whether he had a credible fear of torture in Syria. App. G, 456a-457a.

    **At that proceeding, which was closely coordinated with officials in Washington, D.C., (App. G, 460a; App. A, 140a-141a), defendants falsely told Arar that his lawyer had chosen not to participate. In fact, the only *notice* provided Arar*s lawyer was a message left on her office voicemail that Sunday evening by defendant McElroy. App. G, 456a. Immediately upon getting the message Monday morning, Arar*s attorney called the Immigration and Naturalization Service, who lied to her, claiming that Arar was in route to New Jersey. App. G, 456a-457a. In reality, Arar remained in New York until about 4:00 a.m. Tuesday morning, when he was taken out of his cell in chains and shackles, served with his *Final Notice of Inadmissibility,* a prerequisite to a petition for review in federal court, and secretly transported out of the country on a federally chartered jet. App. G, 458a; App. G, Ex. D, 581a-590a. Defendants never served the order on Arar*s lawyer, as required by 8 C.F.R. § 292.5(a) (2002), and never informed her that Arar had been removed to Syria. App. G, 462a.**

    + + +

    **The majority also held that Arar’s claim for denial of access to court was insufficiently pleaded because he was unable to identify precisely which officials had blocked him from seeing an attorney and being able to seek judicial review. App. A, 21a.5**

    Signed by Arar*s 4 attorneys February 1, 2010.

    • reader says:

      Yup. Thanks, John. They broke every rule they could find in Arar’s case. All kinds of crazy nonsense arguments. His wife was unable to determine his whereabouts for (as I recall and I may be wrong) 3 weeks.

      What’s missing here … or obscured … is the discussion of what this means for the wrongly accused. What if you are innocent? How long does it take to see a lawyer, a judge, or anyone in a position to help you challenge your detention on false premises??????

      Surely, before they eliminate a current procedure based on “settled law” we must have this discussion, no?

      • patrickhenrypress says:

        There is no “settled law” for terrorists, and “terrorist” is attached to someone when one of several administration officials declare that person is one. All of these draconian measures then take effect. At what point in this process do you, the accused, get to say, “Stop! I’m a citizen! I’m not a terrorist! Let me see my lawyer!”? You can’t.

        To stop this, you’d have to show the executive had no right to declare someone an enemy combatant/terrorist. Which court do you expect to hear your arguments? Do you imagine the SCOTUS will agree with you? You can always appeal to the tender mercies of the military kangaroo court you may or may not ever get a hearing in.

        Bow your heads in prayer now, as we seek blessing and forgiveness from the all-powerful, uncaring, legalized tyranny machine.

        • thatvisionthing says:

          Just want to say, this is so Gov. Reagan and traffic court. California 1968, create a new category “the infraction” — not a felony, not a misdemeanor — and watch your Constitution disappear: link to a comment I just left in the Reagan Book Salon:

          I have another question about Reagan as gov of CA. I think he screwed the justice system via traffic tickets. I think about that all the time as I watch military commissions and the kind of Calvinball law we get when we create Constitution-free legal zones. I’m looking at Chapter 18 of Fight Your Ticket (CA 6th ed 1996), and author David Brown follows the devolving trail to “remove from traffic court any constitutional protections that stand in the way of a more ‘efficient’ production of revenue”: 1968 new category “infractions” — not a felony, not a misdemeanor = no jury trial, no court-appointed lawyer, trial by non-judge, no double jeopardy, no Miranda (hey Jane) even though CA law defines a traffic stop as an “arrest,” and no pay for prosecuting lawyer means the judge in effect becomes the prosecutor, parking ticket = automatic conviction which you have to appeal not contest… this is so hard to jive with that famous quote of Reagan’s (which speech?) about how Americans make their government to serve them, and if it doesn’t work they can make it all over again. That’s exactly the opposite of a court without a jury.

          Plus, to say one more thing about that — another point made in the book was that the place where most of us are personally going to come into contact with the judicial system is traffic court. So we learn exactly UNconstitutional justice. We learn presumption of guilt, that you can’t win, you can’t reason, you can’t contest and check and balance, you won’t have a lawyer, the judge won’t understand the law… it’s kabuki, and we learn our role: be helpless, play along. If Americans are accepting of eroded courts, it’s because that’s exactly where we learned our civics lessons.

    • patrickhenrypress says:

      Frankly, this is what awaits all of us here in the Fourth Reich. We have no protection from administration men and women who might remove our citizenship from us by declaration. They have given themselves the right, and shown they hold no mercy for anyone, be they right or be they wrong.

      That is sickening.

  14. nonquixote says:

    Our high school rock band was the Fourth Reich, depending on venue, 1968. Drums and vocals.

    I was worried when I read about the McCain/Lieberman Enemy Belligerent Interrogation and Detention Act introduced March 3, which, from what I understood from one of the diaries here, would allow immediate and unlimited detention straight-away to a military facility with possibly no hope of ever being heard from again, for anyone designated “terrorist.” But I don’t have to worry now because my POTUS already seems like he wants to do this, anyway.


  15. jawbone says:

    Along the lines of “only Nixon could go to China,” is this a case of only Obama, an ostensibly Dem prez, can take our nation to tyranny?

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