There seems to be a lot of confusion in the past few days about what exactly will happen if the Boston Marathon suspect isn’t “given his Miranda rights.”  On the one side, you have a lot of liberals and the ACLU claiming that his “rights are being taken away.”  On the other side you have conservatives wanting to treat him as an “enemy combatant” and remove his rights.

Neither of these things have much to do with the “Miranda warning.”  Your rights don’t disappear just because you aren’t read them.  Let me explain.

The history of Miranda warnings

The “Miranda warning” ultimately comes out of a Supreme Court case named Miranda v. Arizona (1966).  Ernesto Miranda was arrested on suspicion for kidnapping and rape.  After a few hours of interrogation by police, he signed a confession stating that he committed the crime.

Miranda’s lawyer claimed that this confession was not “voluntary,” because Miranda had not been informed of his rights.  Specifically, the United States Constitution guarantees a right that a person cannot be forced to testify against himself or herself.  From the Fifth Amendment:

No person . . . shall be compelled in any criminal case to be a witness against himself

Also, we have a right to consult with an attorney (who perhaps may be able to explain these rights better).  From the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.

Miranda’s lawyer claimed that the suspect, despite signing a statement saying that he waived these rights, was not fully aware of his rights.  Given the strong pressure that may be exerted in police interrogations, Miranda should have been explicitly made aware of these rights and explicitly waive them before speaking against himself.

We don’t need to get into the further details of the actual Miranda decision of the Supreme Court.  Suffice it to say that since that time, police generally verbally remind suspects of their rights immediately upon arrest and before interrogation.  Note the important fact that this is only reading rights aloud that ALWAYS exist, regardless of whether they are read aloud.

If the suspect in the Boston bombing is not “read his rights,” he still has them.  He still has a right to “remain silent” and not testify against himself in court (whether in person or by a written statement).  He still has a right to an attorney to defend him in court.  Failing to “read him his rights” does not take those rights away.

Thus, the ACLU and (mostly) liberals who claim that his rights are being taken away are grossly mistaken when they say this has anything to do with a Miranda warning.  The Miranda warning is merely a reminder of rights — it does not magically grant them when they are read aloud.  Suspects always have these rights.

Emily Bazelon over at Slate is very worried about these magical disappearing writes.  She argues:

[T]he next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

No, no, no.  “Abusive interrogations” are generally considered to be assault.  Police who abuse suspects are often looking at a felony.  Failure to make a verbal statement does not allow police to beat up a suspect.  It does not allow them to force a “false confession,” either.  The Miranda warning exists to protect people who are ignorant of their rights, not to protect people from police abuse.  We have other laws (against assault, coercion, etc.) that protect people from such abuse.

So, if suspects don’t “lose any rights” without a Miranda warning, what exactly is it about?

When Miranda warnings matter

Simply put, a Miranda warning is only relevant for a trial.  It has nothing to do with interrogation practices whatsoever.  A Miranda warning is generally required to introduce self-incriminating testimony (like a confession) into a trial.  If a suspect has not been “read his rights,” courts will generally assume that the suspect may not have been aware of them — and therefore his testimony was not truly voluntary.

In most cases, the absence of a Miranda warning just means that any and all statements made by a suspect are thrown out of court.  They therefore cannot be used to convict the suspect.

In the Boston bomber case, the FBI and police already seem to have a lot of evidence from video tapes, eye witnesses, etc.  It seems like they may have enough to get the bomber a life sentence even without any confession or personal remarks that he might make and incriminate himself.

So, the Miranda warning is probably irrelevant.  In this case, the FBI and police could make a decision that information about possible bombs or threats to public safety are much more important than having a little bit more evidence to pile on top of the mound of evidence they already appear to have.  Isn’t this a reasonable position?

Note again that it is still completely illegal to torture the suspect.  They are not allowed to abuse him.  Police must still follow normal interrogation procedure, just as they would in any other case.  Miranda is irrelevant to this point — it would only come into play if the police wanted to report what he said in court.

The FBI has mentioned the “public safety” exception to the Miranda case, which basically allows police to ask questions about things that pose an immediate danger.  They could, for example, ask the suspect about the location of any other bombs, without necessarily making statements inadmissible in court.

However, under this rule, they could not ask random questions about things that do not pose an immediate danger.  Questions like “Did you commit this bombing?” or even things like “Where did your brother train to be a terrorist?” would not fall under this exception.  They likely would lead any answers to be inadmissible during a trial.  Again, the police and FBI might not care, because they think they have enough evidence already.  If so, Miranda is completely irrelevant to this situation (and again has absolutely nothing to do with taking away any “rights”).

(Some people — including people associated with the government and FBI — have claimed that the “public safety” exception should be read more broadly and could include more extensive questioning of a terrorist suspect.  These ideas have never been tested in court, and my guess is that such arguments would fail unless an immediate danger and justification for the specific questions could be claimed.)

To be absolutely clear: the police have NO REQUIREMENT to read the “Miranda warning.”  Whether they do so or not has no effect on anyone’s rights.  IF, however, the police seek to introduce evidence gained from interrogations without a Miranda warning, they may have a hard time convincing a judge to allow such evidence in court — because judges will protect those very rights that people are claiming are “lost.”

Conservatives, “enemy combatants,” and rights

So far, we’ve highlighted the problems with many misinformed liberal arguments about what Miranda warnings really are about.  Part of the paranoia about these rights, however, comes from statements from people on the other side of the political spectrum.  Some conservatives have gone far beyond saying not to read the suspect his rights: they want to deny him a normal trial, treat him as a wartime criminal, etc.

These are very serious proposals.  If they come into being, it will set a terrible precedent to take away the rights of American citizens.

However, whether or not this comes to pass, it has absolutely nothing to do with a Miranda warning.  Taking away rights by denying someone a trial is taking away a right to a trial, and that has nothing to do with verbal statements.  Whether you read a suspect something about what rights the suspect may or may not have is beside the point.

Why should we care about the Miranda misinformation?

The Salon article mentioned earlier is entitled “Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights?”  I think a better question would be “Why should I care if the media misrepresents what Miranda warnings are really about?”

We should care because there are so many other rights abuses that do matter.  Constitutional rights about searches, rights to privacy, etc. have been altered significantly in the past decade.  Invasive body scans are done on millions of people at airports everyday, while people are forced to toss drink bottles and other random items into the trash.  I’m not saying we don’t need heightened security, but these are actual situations where Constitutional rights are routinely modified or even denied.

We have situations where the President of the United States has been accused of ordering drone strikes to execute American citizens without a trial.  We have increased wiretapping and surveillance on American citizens with less oversight.

These are examples of actually denying American citizens of Constitutional rights.

Every minute we waste discussing nonsense about Miranda warnings that isn’t true is a minute in the media that we could be spending worrying about actual — and often much more severe — denials of rights.