A DISCUSSION OF LAW AND JOURNALISM

Why Bin Laden Might Not Need Miranda’s “Right to Remain Silent”

By the LASIS Staff

On April 14, CNN’s political ticker noted that Attorney General Eric Holder told the Senate Judiciary Committee that there was no need to read Miranda rights to Osama Bin Laden upon his capture because there already exists enough evidence against the al Qaeda leader to convict him at trial.

Miranda rights, of course, are the “right to remain silent” and the “right to an attorney” that, if you watch TV cop shows, a police officer grunts victoriously into a suspect’s ear as the officer cuffs the perp and slams him against the hood of his patrol car. This is purely for entertainment and dramatic effect; a criminal suspect doesn’t need to be read his Miranda rights until law enforcement has placed him under arrest and is ready to question him about his alleged crimes. If law enforcement never plans to question a suspect, then the suspect never has to be read his Miranda rights. (For a more complete explanation about how Miranda warnings work, check out the helpful NOLO guide here.)

And why would law enforcement not plan to question a particular suspect, and thus not bother to read the suspect Miranda warnings? Because, as Holder suggested is the case with Bin Laden, law enforcement believes it already has enough evidence against the suspect to convict him at trial. Any additional statements by the suspect won’t tell law enforcement any more than they already know—so there’s no need to protect the admissibility of those statements at trial by reading the suspect Miranda warnings.

Holder’s response was a probably a clever way to sidestep (or “dodge,” if you don’t like the guy) Obama administration critics who have argued that granting U.S. Constitutional rights to suspected terrorists, such as the right to remain silent, would allow terrorist suspects to somehow use those rights to escape conviction on a technicality of American criminal procedure. As decided by the Supreme Court’s 1966 decision in Miranda v. Arizona (from which the Miranda rights get their name), failing to inform a detainee about his Miranda rights does not bar law enforcement from arresting or even questioning a suspect, but it does bar prosecutors from introducing in court any information gathered from the questioning that takes place before the warnings are given. However, if Holder is right about there being enough evidence to convict Bin Laden without any of Bin Laden’s post-arrest statements (such as a confession), Miranda warnings would be an unnecessary safeguard. Even if Bin Laden’s post-arrest statements are thrown out of court, the rest of the admissible evidence against him would still be sufficient to prove his guilt beyond a reasonable doubt.

Therefore, as Holder was essentially arguing to the Senate Judiciary Committee, the question of whether the U.S. forces who capture Bin Laden will have to read him Miranda warnings is moot—we don’t need to use anything he says against him in court. And, as Holder has suggested previously, the question may be moot for another reason: Bin Laden’s not likely to be taken alive.

Stephen Woods contributed to this piece.

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