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Tuesday, May 4, 2010
By Steven L. Taylor

The Hill reports:  McCain: ‘Serious mistake’ if car bombing suspect was Mirandized

"Obviously that would be a serious mistake…at least until we find out as much information we have," McCain said during an appearance on "Imus in the Morning" when asked whether the suspect, 30-year-old Faisal Shahzad, a naturalized American citizen from Pakistan.

"Don’t give this guy his Miranda rights until we find out what it’s all about," McCain added.

This, without a doubt, ludicrous.  Regardless of anything else, Shahzad is an American citizen arrested on American soil for a crime committed within the borders of the United States.   If such a person doesn’t deserve constitutional protections, I don’t know who would.  Really, this as clear-cut as it gets.  Understanding that it is quite likely that Shahzad is guilty of the crime for which he has been arrested, do I really have to remind a US Senator that there is a presumption of innocence in the US criminal justice system?  It is foundational to our criminal justice system.  Indeed, even if one is caught in the act of committing a crime, one still has legal rights and is assumed to be innocent until the state can make its case in court.  Granted, if one was caught red-handed, then making the case shouldn’t be too difficult.

The whole point of the various rights under the Miranda umbrella (the right to remain silent or to have an attorney) is to put a check on the power of the government.  Further, we have a court process for a reason—we do not want the police to act as judge, jury and executioner (i.e., determining guilt on the spot).  If we are going to have any kind of serious discussion of “small” or" “limited” government it has to start with the coercive powers of the state. 

And, it is worth noting, the authorities do make mistakes.  Does the name Richard Jewell ring a bell?

It seems the McCain’s re-nomination fight is getting to him.

More, along with a long list of reactions, from James Joyner at OTB who also notes that Representative Peter King (R-NY) expressed sentiments along the same line as McCain.






Filed under: Criminal Justice, Terrorism, US Politics |Click here to leave a comment | View Comments |
  • liandrojr
    Well, you hit it on the head: McCain is in a re-election battle, and that is affecting what comes out his mouth. Maybe he would have said this before, but I doubt it. As you mentioned, this is a pretty clear-cut case. If this American citizen doesn't have rights, none of us do. Do it right, then charge him with treason, and get whatever information you can out of him. Then lock him up forever, or execute him. But do it the right way, and do it in a way that doesn't infringe on the rights of US citizens everywhere.
  • Leonard
    Being that the guy was arrested by the NYPD (by definition, on American soil), isn't this a complete hypothetical? I mean, it's supposed to be routine procedure as soon as cops take someone into custody, right? Unless the NYPD botched the job, this guy has already been read his rights as routinely as any other suspect. McCain knows that full well; I think he's just flinging red meat around in electoral desperation.
  • Max
    I don't really care much if McCain wins re-election. But playing devils advocate:

    The standard Miranda warnings are "you have a right to remain silent" and "you have a right to an attorney." The Constitutional right to silence is actually a right to not be forced to self incriminate. It seems to me that any information Shahzad gives before being Mirandized that does not incriminate him wouldn't raise Constitutional problems. But saying "you have a right to remain silent" may discourage him from giving information that incriminates others.

    Of course, from the DA's point of view, anything he gives that does incriminate him -- even if nobody asked him for the information -- makes trying him in court much harder. Asking him questions before Mirandizing him is very risky indeed. But I believe it's *possible* to do it legally; just incredibly hard.
  • It is a right not to self-incriminate, period, not just the right not to be forced.

    And just because he is Mirazndized doesn't mean he won't give information--indeed, doing everything by the book increases the chances that he could be leveraged to give information. If the police screw up and his attorneys knows it, it becomes harder to prosecute. If it is harder to prosecute it is harder to put pressure on him.

    Further, there is a fundamental point here that all persons accused of a crime in the US have the right to their rights, so to speak.
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