Miranda Rights for Enemy Combatants

[Guest markkyle66]

Miranda Rights for Non-American terrorists

Weekly Std. Article

"Miranda Rights apply to terrorists, says Obama"

So... I guess the question is who is really going to be paying for their lawyers if they have a right to one?

[M2]

I wonder how Obama would feel if it was one of his family in the orange jumpsuit...

And in case you don't know what happened next, look here, here and here. Or ask the families of Daniel Pearl, Nick Berg and Paul Johnson.

It is nice how the administration wants to take away the rights of American citizens, and bestow them on foreigners.

p.s. Here (NSFW) is how I think Miranda Rights need to be administered to terrorists!

[zrooster99]

So... I guess the question is who is really going to be paying for their lawyers if they have a right to one?

Team America, World Police!

[HiFlyer]

I wonder how Obama would feel if it was one of his family in the orange jumpsuit...

It is nice how the administration wants to take away the rights of American citizens, and bestow them on foreigners.

This is a typical case of poor or creative editing by the media. If you read the article you'll find that neither Pres Obama nor anyone in his administration said any such thing. The first paragraph states:

"An author and expert on Islam is concerned that President Obama's decision to suspend military tribunals being conducted at the Guantanamo Bay detention facility could lead to a policy where U.S. soldiers might have to read captured enemy combatants their Miranda rights on the battlefield."

(Translated) ....some author, of some other publication, says he thinks that something else Obama did might someday lead to some unspecified policy where some (number unknown) U.S. soldiers in an as yet unidentified set of circumstances, might need to read rights to a captured combatant.

That's an awful lot of "ifs", and conjecture by some self-titled "expert", especially since one of the first things that might have to change are the "Posse Comitatus" laws, since they forbid U.S military personnel from acting in a civil police role, and the Miranda Law applies to the police. Its all a bit of a stretch for me!

[M2]

...the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee.

But Republicans on Capitol Hill are not happy. “When they mirandize a suspect, the first thing they do is warn them that they have the 'right to remain silent,’” says Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee. “It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation--lawyering up.”

Not clear enough for you? It's not journalistic speculation, it's going on right now.

[zrooster99]

"An author and expert on Islam is concerned that President Obama's decision to suspend military tribunals being conducted at the Guantanamo Bay detention facility could lead to a policy where U.S. soldiers might have to read captured enemy combatants their Miranda rights on the battlefield."

I don't think the article is saying he directly decreed that soldiers would mirandize terrorists, but that it's a possible consequence of his decision.

[Guest Lockjaw25]

I wonder how Obama would feel if it was one of his family in the orange jumpsuit...

2.

Guess America is going back to sleep again...I fervently hope the reports are wrong, but it's still disturbing.

[Guest whyme?]

I don't think the article is saying he directly decreed that soldiers would mirandize terrorists, but that it's a possible consequence of his decision.

So you think that a RANDOM Congressman on the House Intelligence Committee is going to MAKE it UP!?!?!?!?! I saw him interviewed and he and another Rep whom is a prior FBI Agent said HE SAW it!

(

Its happening. Welcome to Change. Im gonna see if I can get the miranda right put on an AGM-114 (<- not directed at the poster, but the terrorists that have more rights than I DO)

[Herk Driver]

especially since one of the first things that might have to change are the "Posse Comitatus" laws, since they forbid U.S military personnel from acting in a civil police role, and the Miranda Law applies to the police.

Yet, MP's read military personnel their rights everyday. No change to Posse Comitatus required. FWIW, Posse Comitatus restrictions are mostly policy restrictions versus legal restrictions and only apply domestically. For example, US military collection assets were used to help track down the snipers in the DC area a few years back; which is using military in a law enforcement capacity. This was all done with SECDEF approval not a law change.

And as stated by M2, this is happeniing now.

Edit: for clarity and spelling

Edited June 11, 2009 by Herk Driver

[M2]

That's an awful lot of "ifs", and conjecture by some self-titled "expert", especially since one of the first things that might have to change are the "Posse Comitatus" laws, since they forbid U.S military personnel from acting in a civil police role, and the Miranda Law applies to the police. Its all a bit of a stretch for me!

Wow, I missed your reference to Posse Comitatus Act (18 U.S.C. § 1385); which is badly out of place in this discussion as it deals with the use of the military for law enforcement in the United States!

Now, if you take a second to read the articles...

...the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee.

Try to keep up here, as your interpretation is sadly lagging...

[HiFlyer]

Not clear enough for you? It's not journalistic speculation, it's going on right now.

Well, you're correct. I wasn't clear enough in my original statement. My observation was intended only toward the point that the "expert" (Mr. Spenser)predicted SOLDIERS would be giving Miranda rights. I still believe that to be a totally wrong conclusion. What the administration did was to direct Law Enforcement officials to read terrorist combatants the Miranda rights, when they are apprehended by LE people (I'm not sure how the CIA fits into that, since they're not LE people...maybe when they turn them over to the FBI).

The real issue, I believe, is that the international community hasn't figured out what to officially do with non-state actors. In the past, the national and international system recognized two types of people: civil criminals, and state-sponsored military personnel. The former were dealt with under criminal law, the latter with combatant law (Geneva accords, etc). All of a sudden we have a group of non-uniformed, non-state actors that don't fit in either catagory, yet declare war on states or portions of society and are captured in military operations, not law enforcement operations. The biggest part of this debate revolves around how you catagorize them. If they're criminals, then you apprehend them (military can do that), and turn them over to law enforcement agencies who apply civil legal procedures (including Mirtanda), if you can find a civil procedure that applies. If they're combatants, you detain them as prisoners of war until the war is over. But, if the war goes on for decades (possibly generations) that approach begins to have serious problems. The fact is that nobody knows what to do with them. So far we have declared them "enemy combatants, but that hasn't really worked well. You could always execute them, of course, which would satisfy some of the emotional aspects of the issue, but technically you'd now be guilty of murder under existing international (and U.S. civil law). You're damned if you do, and damned if you don't. As for U.S. laws and rights, they DO apply to non-U.S. citizens, IF they're brought to the U.S. and charged with a criminal act (or even civil actions) in U.S. courts. But every time we get there we're up aganinst that nagging problem again...what exactly is the crime, and what part of the law is it that applies? I don't know the answer, but I do know the entire international community needs to figure out something pretty quick. We're releasing pirates in the HOA because the people who capture them have no legal authority to do anything with them, we have a prison in GITMO full of people we don't want, but can't release, can't try, can't give away, and can't kill. Its a mess!

Wow, I missed your reference to Posse Comitatus Act (18 U.S.C. § 1385); which is badly out of place in this discussion as it deals with the use of the military for law enforcement in the United States!

Now, if you take a second to read the articles...

Try to keep up here, as your interpretation is sadly lagging...

Sorry, if (as the "expert" suggests) the military is to "arrest" people in a civil law sense and bring them to the United States for legal procedings, then Posse Comitatus will certainly be an issue (the defense counsel that will have to be provided will certainly try to bring it up) because the military is being used to support the U.S. civil justice system. I'm not saying it is clear cut, or that I support it, only that it will be a serious question that someone will have to answer.

[Herk Driver]

Sorry, if (as the "expert" suggests) the military is to "arrest" people in a civil law sense and bring them to the United States for legal procedings, then Posse Comitatus will certainly be an issue (the defense counsel that will have to be provided will certainly try to bring it up) because the military is being used to support the U.S. civil justice system. I'm not saying it is clear cut, or that I support it, only that it will be a serious question that someone will have to answer.

Posse Comitatus

Pretty good article about current application of PCA.

This is what the PCA actually says:

Sec. 1385. Use of Army and Air Force as posse comitatus.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Note that 18 USC sect 1385 does not apply (by law) to the Navy, Marines or the USCG. It applies only through DOD policy.

Another good PCA article

However, several exceptions have been made to PCA throughout the years. This includes Title 10 USC Chap 18 which authorizes military support for civilian law enforcement agencies for counterdrug operations and in emergencies involving chemical or biological weapons of mass destruction. It also states that military personnel shall not participate in searches, seizures, arrests, or similar activities unless such participation is otherwise authorized by law. (Military police personnel, for example, may enforce the law within their jurisdictions.)

What exactly is an MP's jurisdiction within the AOR? I would argue that they are well within their boundaries to read someone their rights, as they do daily. But the real question is should they.

Bottom Line: PCA is not the issue here. The issue is whether we should afford enemy combatents the same rights that we afford a military member subject to the UCMJ or any other US citizen? I say no.

Edited June 11, 2009 by Herk Driver

[HiFlyer]

Posse Comitatus

Pretty good article about current application of PCA.

This is what the PCA actually says:

Sec. 1385. Use of Army and Air Force as posse comitatus.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Hmmm... Nothing about just inside U.S. territory If that's the case, we shouldn't be able to use Army or AF assets to work against terrorists IF we decide we're going to treat them like criminals. If we treat them as combatants, however, we can use the Army and Air Force...and soldiers and airmen don't need Miranda because its not a Law Enforcement action. But if they're combatants, what rules apply to them?...POW status??

Bottom Line: PCA is not the issue here. The issue is whether we should afford enemy combatents the same rights that we afford a military member subject to the UCMJ or any other US citizen? I say no.

This touches what I think is another very real issue (perhaps the basic issue underlying all of this, and the one that causes so much political controversy)...exactly what is the definition of an "enemy combatant" as applied to a non-state actor who belongs to a group espousing Jihad (or any other group declaration of war) against the state actors? Is a Taliban who supports AQ in Afghanistan a terrorist, or an "enemy combatant", or a violator of Afghan civil law? How does the international legal system view the members of an AQ cell in the HOA? I think we will constantly have problems dealing with these people until there's a consensus on that issue. Otherwise one segment will treat it as a civil legal issue, while another treats it as a military combatant issue (sort of) and these arguements will go on forever.

[zrooster99]

So you think that a RANDOM Congressman on the House Intelligence Committee is going to MAKE it UP!?!?!?!?! I saw him interviewed and he and another Rep whom is a prior FBI Agent said HE SAW it!

Dude, fvcking relax. I was saying I didn't think the ARTICLE said he decreed individual soldiers would mirandize terrorists, though I may have misread the article. I didn't say I don't think that's what he wants to happen. Same team Farva!

[Guest whyme?]

Dude, fvcking relax. I was saying I didn't think the ARTICLE said he decreed individual soldiers would mirandize terrorists, though I may have misread the article. I didn't say I don't think that's what he wants to happen. Same team Farva!

[Herk Driver]

This touches what I think is another very real issue (perhaps the basic issue underlying all of this, and the one that causes so much political controversy)...exactly what is the definition of an "enemy combatant" as applied to a non-state actor who belongs to a group espousing Jihad (or any other group declaration of war) against the state actors? Is a Taliban who supports AQ in Afghanistan a terrorist, or an "enemy combatant", or a violator of Afghan civil law? How does the international legal system view the members of an AQ cell in the HOA? I think we will constantly have problems dealing with these people until there's a consensus on that issue. Otherwise one segment will treat it as a civil legal issue, while another treats it as a military combatant issue (sort of) and these arguements will go on forever.

Dude, if your going to quote me...

Hmmm... Nothing about just inside U.S. territory If that's the case, we shouldn't be able to use Army or AF assets to work against terrorists IF we decide we're going to treat them like criminals. If we treat them as combatants, however, we can use the Army and Air Force...and soldiers and airmen don't need Miranda because its not a Law Enforcement action. But if they're combatants, what rules apply to them?...POW status??

...please don't edit my posts to include parts that I didn't write.

But, to answer your Hmmm... it only applies inside US territory because a posse comitatus is defined as a sheriff's posse. This is a common-law authority of a county sheriff to conscript any able-bodied male older than 18 to assist him in keeping the peace or to pursue and arrest a felon. It is the equivalent of giving a law enforcement official the power to summon the militia for military purposes. It is held in US law that this applies only to US territory since the intent of the law was to stop reconstruction-era Sheriff's from deputizing Army soldiers and using them to enforce civil law.

Moreover, it has long been held by US courts that US military forces, when in performance of their military responsibilities, are beyond the reach of the Posse Comitatus Act and its statutory and regulatory supplements. According to my research, neither the Act nor its legislative history resolves the question of whether the Act prohibits the Army from performing its military duties even when there are incidental benefits to civilian law enforcement officers. However, courts and legal scholars have held that it does not. Federal courts have also held that as long as the primary purpose of an activity is for a military purpose, the activity need not be abandoned simply because it also assists civilian law enforcement efforts.

One must only look further than the original verbiage in Sect 1385, and read the cases that have been ruled upon to see how the courts have interpreted this law over it's long history.

Edited June 12, 2009 by Herk Driver

[FlyingBull]

Maybe I'm missing something but I don't get the big deal. They aren't talking about reading every captured insurgent their rights, just certain high value targets that will eventually face prosecution:

The Obama administration announced this week that some detainees captured and held abroad have been read Miranda rights to preserve evidence for a potential prosecution.

Administration officials say the Bush administration did this as well in some instances relating to certain criminal cases.

Link: https://blogs.abcnews.com/politicalpunch/20...mirandized.html

It makes sense. If you are going to prosecute someone, even a war criminal/terrorist, then there are certain procedures you have to go through.

[HiFlyer]

HerkDriver. Sorry for the poor manners...I shouldn't have remarked inside your comments. My bad form.

[zrooster99]

Maybe I'm missing something but I don't get the big deal. They aren't talking about reading every captured insurgent their rights, just certain high value targets that will eventually face prosecution:

There are many problems with it, but one big one is that it's not our job. If you send the military to take care of a problem, expect the problem to be solved in a military manner. The only rights they should get from us are their last rights.

[Guest whyme?]

There are many problems with it, but one big one is that it's not our job. If you send the military to take care of a problem, expect the problem to be solved in a military manner. The only rights they should get from us are their last rights.

+1 and

The problem is that you have lost your ablility to interrogate them unless they have a lawyer. You have tied your own hands. Who decides they are lowlevel or not if you cant interrogate them to find out? Its a HUGE mess. The problem here is that Miranda rigth are used in cases like a bank robbery or something where an AMERICAN CITIZEN has allegedly committed a crime. Not a terrorist CAUGHT IN THE ACT... on the battlefield who ISNT an American Citizen.

If you catch a US citizen I can understand potentially reading right in the case of a mass roundup. But we are looking to SAVE Lives here, not cater to someones feelings. Give that dude you read the rights to a hand grenade and there is a100% chance he pulls the pin and kills as many as he can.

Give a grenade to a Joe blow that robbed the gas station and he starts crying and gets scared. Huge difference.

Edited June 13, 2009 by whyme?

[Vertigo]

The problem here is that Miranda rigth are used in cases like a bank robbery or something where an AMERICAN CITIZEN has allegedly committed a crime.

So we don't mirandize foreigners who commit bank robberies in the U.S.? Only American citizens huh?

How does the cop know the suspects nationality before interviewing them? Magic 8 ball?

Isn't it the FBI, a federal law enforcement agency, the ones doing the mirandizing and not the U.S. military? According to the Justice Department, "There has been no policy change nor blanket instruction for FBI agents to Mirandize detainees overseas. While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees."

Sounds to me like it's a few rare cases that are slam dunks and the feds are taking EVERY precaution in order to insure a conviction. I don't see the harm in that.

[Guest whyme?]

So we don't mirandize foreigners who commit bank robberies in the U.S.? Only American citizens huh?

How does the cop know the suspects nationality before interviewing them? Magic 8 ball?

Isn't it the FBI, a federal law enforcement agency, the ones doing the mirandizing and not the U.S. military? According to the Justice Department, "There has been no policy change nor blanket instruction for FBI agents to Mirandize detainees overseas. While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees."

Sounds to me like it's a few rare cases that are slam dunks and the feds are taking EVERY precaution in order to insure a conviction. I don't see the harm in that.

I guess I trust a Senator that was a Prior FBI agent showing concern about Military detainees reading rights, than an Obama Flag waver. Sorry dude, but there are huge issues with that. The reason they are "preserving the quality of evidence obtained" is because they plan on trying them in an American Civilian Court. There is NO other reason. Rights are given to those that commit non war crimes you are correct. It just seems strange that Kalid Didn't get his rights read, but they now are.

Anyways your boy cant do a thing wrong, can he? You are one of the 30% that thinks that Government Motors is a good thing arent you? Its dangerous to afford terrorists caught in the field the RIGHTS of someone that committed a crime with the intent of being tried in a US court. Lets hope we dont read them to the guy that knows when the next 9/11 is about to happen. But Im sure you would have an excuse for that too wouldnt you?

[Vertigo]

I guess I trust a Senator that was a Prior FBI agent showing concern about Military detainees reading rights, than an Obama Flag waver. Sorry dude, but there are huge issues with that. The reason they are "preserving the quality of evidence obtained" is because they plan on trying them in an American Civilian Court. There is NO other reason. Rights are given to those that commit non war crimes you are correct. It just seems strange that Kalid Didn't get his rights read, but they now are.

Anyways your boy cant do a thing wrong, can he? You are one of the 30% that thinks that Government Motors is a good thing arent you? Its dangerous to afford terrorists caught in the field the RIGHTS of someone that committed a crime with the intent of being tried in a US court. Lets hope we dont read them to the guy that knows when the next 9/11 is about to happen. But Im sure you would have an excuse for that too wouldnt you?

Hey dumbass, maybe you want to do some research on my political beliefs before spewing your obviously ignorant mouth off; especially on my stance on the GM thing and the closing of dealerships. I've backed the pres on some things and have slammed him on others (the GM thing being one of them). Go choke yourself with a bag of dicks.

My argument was that it was the FBI that was doing the mirandizing and not the military... which is what seemed to of towed the topic to the Posse Comitatus Act. The Congressman said what he saw was the FBI and the CIA (please show me where he said it was US military doing this). I'm not arguing whether it's right or wrong to read them these rights. I'm just pointing out the facts of the original topic- that it's the FBI doing it and not the military.

That and the fact that you're so stupid that you believe the miranda rights only apply to "AMERICAN CITIZENS".

The Detainee Treatment Act of 2005, while not allowing a standard habeas corpus review, provides that each detainee "has a right to appeal to our civilian-justice system. — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court."

Now if the terrorist does appeal to the U.S. Court of Appeals or the Supreme Court for that matter -wouldn't it be nice to know that their conviction isn't going to get overturned because Sotomayor maybe believes that they should have these rights afforded to them? Just playing devil's advocate here... seems like a possible scenerio doesn't it? Just like how the Military Commission Act of 2006 was overturned by the Supreme Court in 2008.