(Excerpted from Criminal Procedure: Constitution and Society 5e by Marvin Zalman, Copyright 2007 Pearson Education, Inc. Upper Saddle River, NJ.)
Senate Permits Torture, but Army Prohibits
Torture is hideous and degrading both to torturers and victims; it has always deeply scarred societies that allow it. 15 There is a certain irony in the fact that the Administration-Senate compromise bill on detainees in late September 2006 could still allow some ?wiggle room? for CIA coercive measures, 16 while at the same time the U.S.
Army, which fields the largest number of terrorist interrogators, has promulgated a single standard of non-coercive interrogation As Lt. General John Kimmons, the Army?s Deputy Chief of Staff for Intelligence, explained in a news conference:
I am absolutely convinced [that] no good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that,? said the general. ?Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abusive practices were used. And we can't afford to go there.? 17
Interrogation of terror suspects, of course, is a necessary and effective intelligence tool in counterterrorism, and has yielded successes. Indeed, in most European countries, ?an anti-terrorism apparatus based on aggressive domestic spying and extensive judicial power,? has dismantled most ?extremist cells .
. . well before the attack stage.? 18 The use of torture and inhuman treatment may (or may not) assist the short-term goals of interrogation, but in the long run may prove self-defeating.
Extraterritorial Interrogations and Miranda
The Case of Mohamed Rashed Daoud Al-'Owhali: Interrogators Must Tell Suspects Their Rights
Extraterritorial interrogations must adhere to at least a modified verison of the Miranda warnings. Mohamed Rashed Daoud Al-?Owhali, a member of al Qaeda, was prosecuted in 2001 in a New York federal court for the 1998 bombing of the United States embassy in Nairobi, Kenya. He claimed that his statements, made during his interrogation in Kenya by an FBI Special Agent and an Assistant U.S. Attorney, violated his right against self-incrimination. Federal Judge Leonard Sand ruled, in a case of first impression, that U.S. law enforcement personnel interrogating suspects abroad with the consent of the host country for purposes of prosecuting the suspects in United States courts must abide by Miranda:
[A] principled, but realistic application of Miranda?s familiar warning/waiver framework, in the absence of a constitutionally-adequate alternative, is both necessary and appropriate under the Fifth Amendment. Only by doing so can courts meaningfully safeguard from governmental incursion the privilege against self-incrimination afforded to all criminal defendants in this country?wherever in the world they might initially be apprehended?while at the same time imposing manageable costs on the transnational investigatory capabilities of America's law enforcement personnel. . . . . . . . We therefore hold that a defendant's statements, if extracted by U.S. agents acting abroad, should be admitted as evidence at trial only if the Government demonstrates that the defendant was first advised of his rights and that he validly waived those rights. 19
Judge Sand noted that prior case law required warnings when U.S. agents were involved in questioning by foreign police personnel. He specifically held that a suspect questioned on foreign soil must be warned of the right to silence. ?He must also be told that anything he does say may be used against him in a court in the United States or elsewhere. This much is uncontroversial.? 20
Detainees Interrogated Abroad Do Not Have Automatic Right to Counsel
However, the need to warn a suspect that he has a right to the presence of counsel depends on whether that is a right that exists under the law of the host country.
Miranda does not require law enforcement to promise that which they cannot guarantee or that which is in fact impossible to fulfill. No constitutional purpose is served by compelling law enforcement personnel to lie or mislead subjects of interrogation. Nor does Miranda mandate that U.S. agents compel a foreign sovereign to accept blind allegiance to American criminal procedure, at least when U.S. involvement in the foreign investigation is limited to mutual cooperation. 21
Judge Sand rejected the prosecution argument that giving the warnings, with modifications is necessary, would impose intolerable costs to international investigations with cooperating nations or America?s ability to deter transnational crime. Indeed, the federal agents did read extensive warnings to Al-?Owhali, relying on an ?Overseas FBI Advice of Rights Form.? Judge Sand held that the form was facially deficient because it only informed the suspect that he would have a right to counsel if he was in the United States, creating the impression that no such right was available in the country in which the interrogation occurred. Indeed, Kenyan law raised the possibility that counsel might be available at interrogation. As a result, five days of Al-?Owhali?s interrogation was suppressed.
Al-?Owhali later indicated that he wished to inculpate himself in exchange for a guarantee that he be tried in the United States; statements taken on that day were admissible because they were preceded by an oral statement by a U.S. Attorney that he could have an attorney present. Al-'Owhali got his wish. He and three others were found guilty of the embassy bombing in the United States federal court in Manhattan, just weeks after the 9/11 attacks. They were sentenced to life in prison without any chance of release. 22
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