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Shahzad and the Constitution: Why Professor Bainbridge is correct

Faisal Shahzad

Faisal Shahzad

My dear friend (for almost forty-years!), UCLA Law Professor Stephen Bainbridge has recently taken on many the unfortunate claims that the so-called Times Square Bomber, Faisal Shahzad, should not be given his Constitutional rights.  Here is his most recent post, which I re-post in its entirety, lest it lose its full effect:

Why not just torture the SOB?

The WSJ editorial board has joined others on the right in bemoaning the extension of the Constitutional right to remain silent to attempted Times Square bomber Faisal Shahzad:

One regrettable part of this investigation so far is Shahzad’s arraignment in a Manhattan court room yesterday on terrorism charges. This means he has been allowed to lawyer-up and told of his right to remain silent, rather than being subjected to more thorough interrogation as an enemy combatant. Attorney General Eric Holder said yesterday that Shahzad is cooperating, and we hope he is.

But the immediate goal should be to find out everything we can as soon as we can to deter future attacks and target the locations where he trained before the terrorists disperse. Shahzad can face a military commission or civilian trial later. Broadcasting that Shahzad was undergoing such interrogation would also warn other potential terrorists that they could face a similar grilling, not merely the company of an attorney.

This despite the fact that the SOB is an American citizen arrested in the United States. Oddly, moreover, I don’t recall the Journal or others on the right expressing the same concerns about Timothy McVeigh or those militia nuts that got arrested a few weeks ago.

I’m more than a little appalled about how readily some on the right are to toss out the window centuries of Anglo-American jurisprudence to win temporary advantage.

The so-called privilege against self-incrimination emerged in English law during the 1600s in response to the brutalities of royal “justice.” By the end of the 1600s it had become not just a privilege, but a basic constitutional right. Moreover, it was a right not only to remain silent, but also virtually a right to be protected against classes of forbidden questions. To effectuate that right, the exclusionary rule forbade introduction of evidence obtained by coercion, threats, promises, or torture. Yet, that rule should be understood not only as a rule of evidence. It was also intended as a prophylactic ban on coercion and torture in interrogations. The Miranda warnings followed in due course as a further prophylactic ban on coercion.

The need for such a prophylactic barrier was obvious as long ago as the 1931 Wickersham report, which explained that:

I. Existence

The third degree — the inflicting of pain, physical or mental, to extract confessions or statements — is widespread throughout the country.

II. Physical Brutality

Physical brutality is extensively practiced. The methods are various. They range from beating to harsher forms of torture. The commoner forms are beating with the fists or with some implement, especially the rubber hose, that inflicts pain but is not likely to leave permanent visible scars.

III. Protracted Questioning

The method most commonly employed is protracted questioning. By this we mean questioning — at times by relays of questioners — so protracted that the prisoner’s energies are spent and his powers of resistance overcome. At times such questioning is the only method used. At times the questioning is accompanied by blows or by throwing continuous straining light upon the face of the suspect. At times the suspect is kept standing for hours, or deprived of food or sleep, or his sleep is periodically interrupted to resume questioning.

IV. Threats

Methods of intimidation adjusted to the age or mentality of the victim are frequently used alone or in combination with other practices. The threats are usually of bodily injury. They have gone to the extreme of procuring a confession at the point of a pistol or through fear of a mob.

V. Illegal Detention

Prolonged illegal detention is a common practice. The law requires prompt production of a prisoner before a magistrate. In a large majority of the cities we have investigated this rule is constantly violated.

Through illegal detention, time is obtained for police investigation. Various devices are employed to extend this time, such as taking the prisoner to an outlying station, sometimes to another city, sometimes even to a neighboring State, misleading friends or counsel as to the place of detention and, in the meantime, shifting the prisoner to another place. In one large city the practice of shifting the prisoner from station to station has been so highly developed as to have, in local speech, a name of its own. But the practice is not confined to this city nor to the State in which it lies.

Though illegal detention is frequently a mere expedient to gain time for investigation, it may also be effective in “softening” the prisoner and making him more ready to confess. Especially is this so where, as in more than one city, many prisoners are jammed into the same cell, with the result that the air is vile, the sanitary facilities inadequate, the surroundings filthy and verminous, and sleep or rest next to impossible. Illegal detention is at times definitely used for purposes of compulsion — prisoners are told they will be detained until they confess.

The practice of holding persons incommunicado — unable to get in touch with their families, friends or counsel — is frequently encountered, so much so in certain places that there are cells called “incommunicado cells.”

Is that really the world the WSJ editorial board would like to see us return to?

Personally, I think the Anglo-American traditions of liberty are one of the things conservatives ought to be in favor of conserving.

If not, then we must concur with Justice Felix Frankfurter that “the duty to advice an accused of his constitutional rights is ” one of the “characteristics of [our adversarial] system and manifestations of its demands.” Watts v. Indiana, 338 U.S. 49, 54 (1949).

Amen! These traditions of liberty are precisely those things that all of us should be in favor of conserving. I am troubled by the disturbing trend on the part of pundits, Members of Congress, and others to be quick to set aside some the most fundamental rights that serve as the foundation of the American system.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.