Monthly Archives: October 2013

What is so Terrifying About the Right to Counsel?

An article in the New York Times yesterday gave me considerable pause. The sort of pause that makes you blink, choke on your coffee,  and cough miserably before re-reading the paragraph. Evidently, the United States government has captured another alleged Al-Qaeda conspirator to the 1998 Kenyan Embassy bombings. Captured and warehoused in a naval brig floating along the Mediterranean Sea without an attorney, Abu Anas al-Libi is described by the Times as “an intelligence goldmine.”
Abu Anas is charged by way of federal indictment alleging conspiracy with Osama Bin Laden to attack American interests in Saudi Arabia, Yemen, and Somalia as well as the 1998 Kenya bombings. These facts are important. Abu Anas is not, it would appear, a prisoner of war, but rather an accused person awaiting trial. This custodial status implicates two important and dove-tailing constitutional principles. In one sense, Abu Anas’ position as a suspect in a criminal investigation implicates his Fifth Amendment right to counsel and privilege against self-incrimination. Pursuant to Miranda, Mr. al-Libi should at least be aware of this fact. In the other, Mr. al-Libi is already charged with a criminal offense, which means that critical stages of the proceedings against him should already be underway – but they are not.
This basic calculus assumes, which is particularly dangerous in this day and age, that al-Libi is held criminally and not as an enemy combatant under the authorization for the use of force set out in 2001. If he is detained under the latter category, there is still some ground for concern. Article 22 of the Third Geneva Convention excludes sea imprisonment for any period of time. I find it highly dubious, however, that the government can in good faith detain a man as an enemy combatant when he awaits trial on a federal indictment for crimes committed against the United States before the authorization for the use of force took effect.
Keeping this distinction in mind, I will focus this post principally upon the criminal justice issues this case presents. In particular, I am deeply troubled by the extensive use of the “public safety” exception to the Miranda requirement that is now in vogue amongst federal law enforcement (You may remember the use of this term recently during the Boston Marathon bombing investigation).
The methodology that will be used to extract intelligence data has already been “tested” on another government detainee – Ahmed Abdulkadir Warsame. In that investigation, the F.B.I. interrogation experts subjected the suspect to months of boat-confined interrogation before sending in a “clean” team of F.B.I. investigators, who were not privy to the prior team’s interrogation, to mirandize the defendant and extract a court-admissible confession. This method seeks to stretch the public safety exception well beyond its breaking point and then sweep away the taint of illegality by bringing a new set of eyes onto the investigation. This author’s reading of precedent finds this approach to be wanting.
Before we delve further, let us examine the public safety exception to the Miranda requirement. The seminal case on the issue – New York v. Quarles -involved a known informant alerting the police that a particular suspect raped her. She further notified law enforcement that the suspect carried a gun and that he had just entered a supermarket with his firearm. When the police confronted the suspect, they drew their weapons and asked him were they could find the gun. New York v. Quarles, 467 U.S. 649 (1984). Thus, in a moment of spontaneity, where the “kaleidoscopic” nature of events necessitates action for the protection of the public, the requirements of Miranda do not apply.
The Quarles opinion was not without its dissenters. Justices Marshall, Brennan, and Stevens all expressed the opinion that such an exception might swallow the rule, and in so doing encourage the exact type of police practice Miranda sought to abolish:

It would strain credulity to contend that Officer Kraft’s questioning of respondent Quarles was not coercive. In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: “Where is the gun?” . . . Officer Kraft’s abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. . . .

Id. at 684 – 85 (Marshall, J. dissenting). What further strains credulity is that an exception drawn to confront the imminent threat of a firearm in a supermarket immediately possessed by a suspected rapist could be extrapolated to justify the many-months-long detention of a man without counsel for crimes he allegedly committed in 1998. Unless the government can establish that al-Libi knows the passcode to a ticking time bomb threatening American lives, it seems highly doubtful that anyone but the presidential sycophants in the Justice Department believe that such interrogation practices passes constitutional muster.
In fact, it would appear that even the aforementioned sycophants are worried. Hence the F.B.I. “cleanup crew” mentioned earlier. Although the Supreme Court has infamously permitted the use of interrogation in the non-custodial context when the suspect is free to leave or is not being directly questioned, it has carefully never permitted the use of “wave” interrogation methods where the detained suspect is first questioned sans-Miranda and is then later mirandized to cure the illegality of the initial question time. Oregon v. Mathiason, 429 U.S. 492, 499 fn. 5 (Marshall, J. dissenting) (“I trust today’s decision does not suggest that police officers can circumvent Miranda by deliberately postponing the official “arrest” and the giving of Miranda warnings until the necessary incriminating statements have been obtained.”). Such a practice is inherently suspect. People do not, as a general rule, understand the difference between a custodial interrogation and any other type of police questioning. If a suspect “spills the beans” to the cop without being informed of his Miranda rights, does he truly understand that he has no obligation to tell the second questioning cop anything? Now, lets extrapolate this reasoning to a Navy brig, after many months of questioning. Do I even need to elaborate on the coercive nature of such an environment?
Finally, there is the “critical stages of the proceedings” question I presented earlier. Mr. al-Libi is not a generic, perpetrator’s-identity-unknown suspect leaning against the street corner. He is already facing an indictment. This means that, if he were a U.S. citizen charged with Murder, Possession of a Controlled Substance, or Reckless Driving, he would be entitled to magistration and bond (or at least a determination of bond eligibility because we are in Federal Court where there “are no [favorable] rules [governing bond] and the points don’t matter”). The high Court has ruled time and again that these pre-trial proceedings trigger the Sixth Amendment right to counsel, and not merely the more prophylactic right to counsel secured by Miranda’s interpretation of the Fifth Amendment.
Ultimately, the President cannot avoid the age old “have your cake and eat it too” quandary. If the government truly needs Mr. al-Libi’s mind for military intelligence reasons, they must accept that such a price will cost them a criminal prosecution. The U.S. Attorney’s Office is not unfamiliar with this problem – transactional immunity is commonly available when the government is put to the choice of subpoenaing one grand jury target to bolster the prosecution of another. This scenario does not readily present any meaningful differences. The Government defends its position on the basis that the Guantanamo era needs to come to an end. No one agrees with that generality more than me. Nevertheless, rather than play a game of chess with the finer points of constitutional law and criminal procedure, the Government should be asking broader questions: Do we have the right to detain people indefinitely? Are we willing to sacrifice our own values for the sake of military security? Are we the just arbiters of “terrorist” criminal conduct in the first instance?

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Nemo Me Impune Lacessit

By day, I work as a criminal defense lawyer. The other day, in the course of my professional duties, I had to take a stroll by the San Antonio Police Department headquarters on Cesar Chavez Street (the road once went by the moniker “Durango Street” which I though had a better ring to it). Near the main civilian entrance, I happened upon an inscription:

“Nemo me impune lacessit.” 

A life long Latin lover, I couldn’t help but smile.  The phrase has murky origins in Antiquity, although it later became the motto of the Scottish order of chivalry – the Order of the Thistle. Translated, the phrase means “No one challenges me with impunity.”

The phrase strikes me as an odd choice for an American police department decoration.  Ultimately however, I’ve concluded that a historical disagreement in the translation of the  Latin verb Lacessit fated the SAPD to become the butt of a beautifully ironic joke. 

In the United States, the phrase has taken on another meaning. It is frequently worn by law enforcement as a sign of mourning or solidarity after an officer is killed on duty.  The sense in which American police use the phrase is “no one can harm me unpunished.” I think that a closer scrutiny of the Latin rejects this translation.

The word “Lacesso” is defined as “to excite, provoke, challenge, exasperate, or irritate. A Latin Dictionary 1026, Ed. Lewis and Short,  (Oxford 1879). A fine example of its literal usage can be found in Cicero’s defense of Titus Annius Milo in 52 BC.   Pro Milo 31, 84, Marcus Tullius Cicero, Ed. Albert Clark (1918) (perhaps the finest, albeit long winded, closing argument in a self-defense murder trial the criminal defense bar will ever know). Cicero’s use of the word connotes physical violence; however, on a deeper level, the word’s placement indicates that such a “challenge” is more than an angry brawl – it implies a degradation of freedom or of self-determination:

That divine power; that very same divine power which has often brought incredible prosperity and power to this city, has extinguished and destroyed this mischief; by first of all inspiring it with the idea of venturing to irritate by violence and to attack with the sword the bravest of men, and so leading it on to be defeated by the man whom if it had only been able to defeat it would have enjoyed endless licence and impunity.

Id. In this context, it implies a certain degree of metaphysical naughtiness on the part of the actor that suggests his comeuppance will flow from divine providence rather than State action.  I think it is this connotation of the morally repugnant irritant that inspired the Scottish Order of the Thistle to adopt the word into its motto.  The code of chivalry is enforced not merely by the sword, but by virtue of its moral superiority. 

The chivalric mentality arrived in America with a considerable amount of damage in the shipping process.  The word doesn’t get much airplay outside the context of the occasional opening of a door for a woman going into the bank, but the sanctity of the individual which lies at the heart of chivalry spread into the thoughts and precepts of our nation like wildfire.  The democratization of chivalry can be tied directly to the thought processes of Locke and Rousseau, Franklin and Jefferson. In essence, as the bourgeois adopted the parlance of the landed gentry, the individual grew to believe that he could and should police himself; his internal motivation to preserve his honor, it was believed, would trump the external pressures of life that trend toward the vulgar.  Does this theorem work in practice? Yes and no.  People are, as they have always been, a rather nasty lot. But the idea of chivalric honor and individual service to others does seem to gently prod the human race in the right direction.  As the motto at the heart of this article implies, the karmic consequences of the alternative serve as a decent incentive.

Before the poor reader begins to smell a digression, it would be best to return to the central premise discussed above – irony.  The problem I find with the SAPD’s use of this inscription comes from my love of the individual and my disillusionment towards institutions – Law enforcement institutions in particular.  Usually, when the police adopt a slogan, its quite easy to smirk or ridicule. “Serve and protect” might be more adequately phrased “search and seize” or “arrest and obfuscate,” particularly if we are polling those who most frequently come into contact with the police.  This Latin motto is something entirely different. The more careful translation suggests that it is a slogan of individual liberty, a warning to tyrants; however, the Department’s approach suggests a more “no one challenges the authority of the state” slant to the quotation.  If Caesar in all of his imperial zeal coined this phrase, I can only imagine that he would have approved the SAPD’s choice. The phrase that worked as a badge of honor for the individual has now become a cold inscription on the Ministry of Love.

Some might contend that this is too harsh. The injury threatened against those who serve in the police force is real and terrifying, and the phrase (as the department uses it) promises vengeance to those that would do an officer harm. On its face, this is not an unreasonable point of view.  The tragedy of the matter, however, is the “us v. them” mentality such a slogan implies.  When those in law enforcement view its citizenry as “the other,” serious problems lie in ambush.  It is injury to the law that the police must protect; the physical toll of wrongdoing cannot be undone.  The only true preventative measure for that deep of an injury lies in education and in compassion for the individual. To achieve those ends, we must police ourselves. Placing too much stock on the authority of governmental institutions to police us works only to deny the individual his freedom and dignity.

At the most basic level, this means holding law enforcement accountable when it begins to “lacesso.” Michelle Alexander’s book “The New Jim Crow” studiously documents the culture of perjury rampant amongst police departments in this country.  Is this how departments apply the concept behind this ancient phrase? Brutality, botched arrests, disregard for the privacy rights of citizens; are these not injuries which must be thwarted before they are committed with impunity? Institutions should be challenged. When the police look on the challengers with contempt or aggression, the proof of their folly now hangs above the door to the department. Perhaps, with the help of men like Cicero, we can requisition this phrase from our captors and carry it as our own battle standard.

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