Enough of the hype -- Why Khalid Sheikh Mohammed must be tried in New York (or Virginia, Pennsylvania, or Washington DC)

After Scott Brown won the Massachusetts Senate race by hyping a false national security issue -- whether terrorists arrested in the US with their pants on fire should receive the Miranda warnings (answer: yes, after they get debriefed under the "public safety" exception to the rule of Miranda v. Arizona), members of Congress on both sides of the aisle, Mayor Bloomberg of New York , and various New York civic associations have reopened the issue of where the trial of the mastermind of the 9/11 attacks should be tried. This is truly unfortunate.

We Americans justlly pride ourselves on our venerable Constitution. Adopted in 1787, it has stood the test of time. The preamble to the Constitution announces that among its purposes is to "establish Justice." Establishing Justice even comes before "insure domestic tranquility, provide for the common defence." The American colonists had suffered at the hands of a monarchy that did not shrink from hauling colonists across the sea to be tried for offenses before strangers on foreign shores, The Declaration of Independence, chastized the King for "transporting us beyond Seas to be tried for pretended offenses." In Article III, Section 3, clause 2, the framers enshrined the right to be tried by a jury drawn from the vicinity where the crime occurred. It says that in America, one must be tried ". . . in the State where the said Crimes shall have been committed; but when not committed in any State, the Trial shall be at such Place or Places as the Congress may by Law have directed"

The controversy will require the Justice Department to research the right of a defendant to be tried in the place where the crime occurred -- in this instance, it is either New York City or Arlington, Virginia. or near the resting place of Flight 93 in Pennsylvania. Being somewhat expansive, since the target of Flight 93 was the US Capitol, the case could be brought in the US District Court in Washington, D.C.

The right to be tried in the federal district where the crime occurred is a right of Constitutional dimensions. No prosecutor wants to give the defense side a sure-fire basis for appeal before the case even starts. While the pressure to move the trial is substantial, the Justice Department should have the last word on this question. It is simply not a political issue.

Public Safety Exception to the Miranda Requirement

My fellow denizens of the world of law enforcement and administration of justice have been amazed at the consternation that has followed the disclosure that the Christmas bomber, Umar Farouk Abdulmutallab, was given Miranda warnings following his arrest at the Detroit airport on December 25th. In our country, since the enactment of the Bill of Rights, every person has a right against self-incrimination under the Fifth Amendment to the Constitution. The purpose of the right to remain silent is not to frustrate any eventual prosecution. Rather, it is to make sure that the prosecution proves its case without any evidence provided by the defendant in violation of the US Constitution. A defendant does have the right to waive the right to remain silent, but such a waiver must be knowing and voluntary. Forty-five years ago, in the case of Miranda v. Arizona, 384 US 436 (1964), our Supreme Court announced the rule which has been followed ever since that requires that before such a waiver may be knowing and voluntary, a person in custody must be advised of his right to remain silent, that any statements made by him could and will be used against him in a court of law, that he has a right to the advice of an attorney, and that if he cannot afford an attorney that one will be provided for him free of charge.



Commentators and pundits have suggested that it was wrong not to allow Umar Farouk Abdulmutallab to be debriefed for intelligence purposes prior to providing him with Miranda warnings. While the extent of the pre-Miranda warnings questioning of the would be bomber have not been disclosed, such an interrogation would have been perfectly proper under an exception to the Miranda requirement announced in the case of New York v. Quarles, 467 U.S. 649 (1984). In an opinion by Justice Rhenquist, the Court provided a narrow exception to the Miranda requirement when the facts of the situation reasonably prompt a law enforcement officer to interrogate the defendant because of a concern that there is an imminent danger to public safety -- such as the unknown whereabouts of a loaded gun discarded by the arrestee.



In the case of Umar Farouk Abdulmutallab, it does not take a lot of imagination to conjure up the possibility that there were comrades on their way to the U.S. or elsewhere with similarly explosive materials secreted in their underwear. So, if the pre-Miranda interrogation of the "crotch bomber" is ever challenged in court, I predict it will be upheld by the judge.



Commentators who decry giving arrested terrorists the same rights as accorded to anyone else arrested within the United States are missing the point. We should be proud of our ability to prosecute fairly and squarely anyone who arrives on our shores with criminal intent and engages in acts that endanger public safety. It is only when the rules are not followed that our ability to prosecute and appropriately convict and punish terroristx is thwarted. The population incarcerated in the prison at Guantanamo Bay has not been significantly diminished as was hoped last year precisely because the evidence against those prisoners has been tainted and cannot be used against them in court or before military commissions. The actions of the interrogators of those prisoners have created not enemy combatants but stateless combatants who cannot be prosecuted and, unless new homes can be found for them, cannot be deported.



The priority of our criminal justice system continues to be national security. We should not succumb to fears being inflamed by those pundits who do not know the proper procedures for enforcing the federal criminal code. They should not second guess the decisions made by our trained intelligence and law enforcement officers based upon sheer speculation and political hype.