39. Mayer, Dark Side, pp. 155–56; author interviews with Andrew Patel, one of Padilla’s attorneys.
40. George W. Bush, “To the Secretary of Defense,” June 9, 2002.
41. After Padilla petitioned for a writ of habeas corpus, the Supreme Court granted the habeas appeal of a dual Saudi-U.S. citizen, Yaser Esam Hamdi, holding that while Americans could be held as enemy combatants under the measure passed by Congress a week after Sept. 11 authorizing the president to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the attacks, Congress had not suspended habeas corpus, and the due process clause of the Fifth Amendment gave a prisoner the right “to contest the factual basis for that detention before a neutral decisionmaker.” Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Rather than try Hamdi, the government agreed to release him to Saudi Arabia in exchange for his renunciation of U.S. citizenship. The dire threat he posed suddenly evaporated. After the Hamdi ruling, the Bush administration transferred Padilla to the criminal justice system just before his appeal was to be heard by the Supreme Court. Earlier, the Fourth Circuit had dismissed Padilla’s habeas petition, ruling that the president could hold him without factual inquiry or evidentiary hearing. Rumsfeld v. Padilla, 296 F.3d 278 (4th Cir. 2002). The Court had rejected Padilla’s petition at first on the argument that it had been brought in the wrong jurisdiction—the Second Circuit covering New York, where he had first been jailed as a material witness, rather than the Fourth Circuit covering South Carolina, where he was currently held in the navy brig. Rumsfeld v. Padilla, 542 U.S. 426 (2004). The Second Circuit had found no presidential authority to hold him; the Fourth Circuit later recognized the authority. Miffed that the government was unwilling to test its ruling in the highest court, the judges of the Fourth Circuit refused to approve Padilla’s transfer to civilian courts. Padilla v. Hanft, No. 05-6396 (4th Cir.), Order, Dec. 21, 2005. The Supreme Court then approved the transfer and vacated the Fourth Circuit’s opinion without giving full consideration to the question of whether a U.S. citizen could be seized on American soil (as opposed to the battlefield) as an enemy combatant under the Sept. 11 congressional authorization.
42. Motion to Dismiss for Outrageous Government Conduct, United States v. Padilla, No. 04-60001 (S.D. Fla., Miami Div. 2006), Oct. 4, 2006.
43. Deputy Attorney General James Comey, testimony, Senate Judiciary Committee, June 1, 2004.
44. Declaration of Vice Admiral Lowell E. Jacoby, Director of the Defense Intelligence Agency, in Padilla v. Bush, No. 02 Civ. 4445 (S.D.N.Y. 2003), Jan. 9, 2003.
45. Michael Isikoff, “ ‘We Could Have Done This the Right Way,’ ” Newsweek, April 25, 2009; Ali Soufan, “My Tortured Decision,” New York Times, April 22, 2009. The Zubaydah interrogation reportedly took place in Thailand and was taken over by private contractors working for the CIA.
46. Michael Mobbs, “Declaration of Michael H. Mobbs,” affidavit in Padilla v. Bush, No. 02 Civ. 4445 (S.D.N.Y. 2002), Aug. 27, 2002.
47. Judge Marcia Cooke, in Kirk Semple and Carmen Gentile, “Padilla Sentenced to More Than 17 Years in Prison,” New York Times, Jan. 22, 2008. Lizette Alvarez, “Sentence for Terrorist Is Too Short, Court Rules,” New York Times, Sept. 19, 2011, p. A12.
48. Miranda v. Arizona, 384 U.S. 436 (1966), combining four similar cases. Majority opinion by Earl Warren. The split was 5–4, with one of the dissenters, Thomas Clark, concurring only insofar as “a totality of circumstances” be used as a looser test of a confession’s voluntariness and that the required advance warning be limited to the right to counsel.
49. Miranda claimed a spousal privilege with his common-law wife, the question was litigated, and Miranda lost because they were not legally married.
50. AP, “Miranda Slain: Main Figure in Landmark Suspects’ Rights Case,” New York Times, Jan. 31, 1976; RG 107 Maricopa County, SG 8 Superior Court Criminal, Arizona v. Ernesto Miranda, 1963–1971, Accn. No. AA-79-9, Arizona State Library, Archives and Public Records.
51. Mark 15:3–5.
52. I. F. Stone, self-interview, New York Times Magazine, April 8, 1979, on his work The Trial of Socrates (Boston: Little, Brown, 1988); reports of Socrates’s silence were first made by the Greek historian Appian of Alexandria and the Greek philosopher Maximus of Tyre, according to Paul W. Gooch, Reflections on Jesus and Socrates: Word and Silence (New Haven, Conn.: Yale University Press, 1997), pp. 14, 82.
53. G. W. Bernard, The King’s Reformation: Henry VIII and the Remaking of the English Church (New Haven, Conn.: Yale University Press, 2007), p. 493. See also Leonard W. Levy, Origins of the Fifth Amendment (New York: Oxford University Press, 1968), p. viii.
54. Phrases from lower courts and citations in Bram v. United States, 168 U.S. 532 (1897). See also Alan Hirsch, “Threats, Promises, and False Confessions: Lessons of Slavery,” Howard Law Journal 49, no. 1 (Fall 2005), pp. 31–60.
55. Brown v. Mississippi, 297 U.S. 278 (1936).
56. Chambers, 309 U.S. 227. See also Ashcraft v. Tennessee, 322 U.S. 143 (1944), throwing out a confession given after thirty-six hours of interrogation.
57. Blackburn, 361 U.S. 199.
58. Malloy v. Hogan, 378 U.S. 1 (1964). See also Massiah v. United States, 377 U.S. 201 (1964), which invoked both the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel.
59. Dickerson v. United States, 530 U.S. 428 (2000) (Antonin Scalia dissenting, Clarence Thomas concurring; majority opinion by Chief Justice William Rehnquist).
60. Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 3501.
61. David M. O’Brien, Constitutional Law and Politics, vol. 2, Civil Rights and Liberties, 5th ed. (New York: Norton, 2003), p. 1050.
62. Dickerson, 530 U.S. 428.
63. Arizona v. Fulminante, 499 U.S. 279 (1991).
64. Miranda warnings must be given only to those in custody, that is, where a reasonable person would not think he is free to leave. Stops for traffic violations are not considered “custodial” and therefore don’t require the warnings. Pennsylvania v. Bruder, 488 U.S. 9 (1988).
65. Oregon v. Bradshaw, 462 U.S. 1039 (1983), where a conversation begun by a defendant was deemed a waiver of Miranda rights.
66. Police chased an alleged rapist into a supermarket, arrested him, discovered an empty holster, and asked him where the gun was. “The gun is over there,” he said, nodding toward some cartons. The weapon was retrieved, and only then was he Mirandized. Lower courts suppressed the pre-Miranda statement, but the Supreme Court admitted it, establishing a “public safety exception” to the Miranda requirement. The exception could probably be applied to battlefield interrogations of suspects later tried in criminal courts. New York v. Quarles, 467 U.S. 649 (1984). In a 2010 memo to agents, the FBI sought an expansive interpretation of the public safety window provided in Quarles by authorizing the immediate questioning of terrorism suspects without reading them their rights, in exchange for the inability to use the statements in a trial. If additional questioning without the Miranda warning “outweighs the disadvantages of proceeding with unwarned interrogation” (i.e. the possible suppression of the evidence in a criminal case), supervisory agents may give approval after consulting with FBI headquarters. Agents may also ask the suspect to waive his right to appear promptly before a judge. Such an appearance usually coincides with the assignment of an attorney, and unwarned interrogation may not continue thereafter. FBI, “Custodial Interrogation for Public Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside the United States,” Mar. 25, 2011, http://www.nytimes.com/2011/03/25/us/25miranda-text.html.
67. Illinois v. Perkins, 496 U.S. 292 (1990).
68. Harris v. New York, 401 U.S. 222 (1971). Also, a witness found as a result of questioning a defendant without a Miranda warning may testify, Michigan v. Tucker, 417 U.S. 433 (1974). Further, the wording of the warning is flexible. In Duckworth v. Eagan, 492 U.S. 195 (1989), the Court ru
led 5–4 that it was adequate to inform a suspect that appointed counsel would be provided “if and when you go to court.” The Seventh Circuit and the dissenters found that the phrase suggested that no lawyer could be made available during interrogation, although Miranda states that a suspect must be informed that an attorney would be appointed “prior to any questioning.” The right to counsel is also offense-specific, the Court ruled in McNeil v. Wisconsin, 501 U.S. 171 (1991), meaning that a defendant who has a lawyer in one case can be questioned without a lawyer regarding another crime if he waives his Miranda rights in that separate case. Scalia wrote the opinion.
69. Lindsey and Gayles v. United States, Nos. 99-CF-1295, 99-CF-1670, 03-CO-1283, 03-CO-1286 (D.C. Cir. 2006).
70. Florida v. Powell, No. 08-1175 (2010). Liberals and conservatives joined to make a 7–2 majority, with Ruth Bader Ginsburg writing the opinion and John Paul Stevens and Stephen Breyer in dissent. Breyer wrote a split opinion, dissenting on the flexibility of the warning but agreeing with the majority that the U.S. Supreme Court had jurisdiction, in that the Florida Supreme Court, which had ruled for Powell, had not done so purely on state constitutional grounds. Stevens argued that the U.S. Supreme Court had no jurisdiction.
71. Maryland v. Shatzer, No. 08-680 (2010).
72. Berghuis v. Thompkins, No. 08-1470 (2010). Anthony Kennedy wrote for the majority, Sonia Sotomayor for the dissenters. All lower courts, both Michigan and federal, had rejected Thompkins’s Miranda claim until the Sixth Circuit ruled for him, noting that his long, persistent silence “offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.”
73. North Carolina v. Butler, 441 U.S. 369, 373 (1979).
74. United States v. Welch, 455 F.2d 211, 213 (2nd Cir. 1972); United States v. Chavarria, 443 F.2d 904, 905 (9th Cir. 1971). See also United States v. Bin Laden, 132 F. Supp. 2d 168, 187 (S.D.N.Y. 2001). The logic holds that the United States cannot impose its procedures on foreign police.
75. Neil MacFarquhar, “8 Tourists Slain in Uganda, Including U.S. Couple,” New York Times, March 3, 1999.
76. Most details of the crime and the interrogations are from Judge Ellen Segal Huvelle’s 150-page ruling on the suppression motion in United States v. Francois Karake et al., No. 02-0256 (ESH) (D.C. D. 2006); also, author interviews with the investigator Colleen Francis, April 11, 2005, and the assistant federal public defender Shawn Moore, March 23, 2005.
77. Their transfer to the United States appears to have been “lawless,” according to one of their lawyers, Shawn Moore. Rwanda’s criminal code prohibits extradition of Rwandan nationals, so Rwanda proposed a joint U.S.-Rwandan prosecution in Rwanda. When the United States rejected that, the two countries “reached an agreement” on sending the three defendants to the United States, without their having an opportunity to oppose it. Karake, p. 68.
78. Ibid., pp. 144–45.
79. On the occasions when a State Department security officer from the embassy was the questioner, he sometimes read the standard warning used in the United States, because he didn’t always have the overseas version, which states: “We are representatives of the United States government. Under our laws, you have certain rights. Before we ask you any questions, we want to be sure you understand those rights. You do not have to speak to us or answer any questions. Even if you have already spoken to [Rwandan] authorities, you do not have to speak to us now. If you do speak with us, anything that you say may be used against you in a court in the United States or elsewhere. Under U.S. law, you have the right to talk to a lawyer to get advice before we ask you any questions and you can have a lawyer with you during questioning. Were we in the United States, if you could not afford a lawyer, one would be appointed for you, if you wished, before any questioning. Because you are not in our custody and we are not in the United States, we cannot ensure that you will be permitted access to a lawyer, or have one appointed for you, before or during any questioning. If you want a lawyer, but the foreign authorities do not permit access at this time to a lawyer or will not now appoint one for you, then you still have the right not to speak to us at any time without a lawyer present. If you decide to speak with us now, without a lawyer present, you retain the right to stop answering questions at any time. You should also understand that if you decide not to speak with us, that fact cannot be used as evidence against you in a court in the United States.” Ibid., pp. 27–28n.
80. “U.S. Protests to Israelis on 3 Jailed Americans,” New York Times, Feb. 8, 1993.
81. Michael Higgins, “In Chicago Court, Israelis Deny ’93 Torture of Bridgeview Man,” Chicago Tribune, May 1, 2006. From the heavily censored transcript.
82. The jury found that he had lied in a questionnaire responding to a civil suit against him, and several Islamic charities, filed by the family of an American teenager, David Boim, who had been shot dead in the West Bank. Salah had not mentioned his ties to Hamas. A Seventh Circuit panel upheld a judgment against the charities for sending funds to Hamas but dropped Salah as a defendant. Mike Robinson, “Terror Verdict, Muhammad Salah Dropped from Suit,” AP, Dec. 3, 2008; “21 Months for Man Once Accused of Funding Hamas,” CBS, July 11, 2007; Libby Sander, “2 Men Cleared of Charges of Aiding Hamas Violence,” New York Times, Feb. 2, 2007.
83. The Fourth Circuit rejected his appeal but granted a government appeal of the thirty-year sentence as too lenient. United States v. Ali, Nos. 06-4334 and 06-4521 (4th Cir. 2008). See also, Indictment, Ali, Crim. No. 1:05CR53 (E.D. Va., Alexandria Div., Feb. 3, 2005).
84. Ali, No. 05-53, Memorandum Opinion, Lee, J. (E.D. Va., Oct. 25, 2005).
85. The Saudis did most of the questioning and initially rejected an FBI request to interview him. When the FBI submitted thirteen questions they wanted the Saudis to pose, the Saudis agreed to ask him six, while FBI agents watched behind a one-way mirror. He was never Mirandized, even later when the FBI questioned him directly, because the purpose was said to be intelligence gathering, not criminal prosecution. Tainted by that omission, incriminating statements made during those sessions were not used in trial.
86. Jerry Markon, “Falls Church Man’s Sentence in Terror Plot Is Increased to Life,” Washington Post, July 28, 2009. Life means life, since there is no parole in the federal system. Curiously, six months later in Maryland, a young white man, Collin McKenzie-Gude, was sentenced to only five years for actually putting together the means to assassinate Obama. There was plenty of evidence: assault rifles and armor-piercing ammunition, bulletproof vests, a map of Camp David showing a motorcade route, and instructions on killing someone two hundred meters away. But he was not Muslim and had no suspected links to al-Qaeda. He was allowed to plead guilty to possessing a destructive device. Erin Donaghue, “Man Gets 5 Years for Having Explosives,” Gazette, Jan. 20, 2010, p. 1.
87. Bukovsky, “Torture’s Long Shadow.”
88. David K. Shipler, Russia: Broken Idols, Solemn Dreams, rev. ed. (New York: Penguin, 1989), p. 438–39.
89. Bukovsky, “Torture’s Long Shadow.”
CHAPTER TWO: CONFESSING FALSELY
1. Arthur Koestler, Darkness at Noon (New York: Bantam, 1966), p. 156, originally published in 1941 by Macmillan.
2. Saul M. Kassin and Gisli H. Gudjonsson, “The Psychology of Confessions: A Review of the Literature and Issues,” Psychological Science in the Public Interest 5, no. 2. (Nov. 2004), pp. 33–67. See also Innocence Project, “Understand the Causes: False Confessions,” http://www.innocenceproject.org/understand/False-Confessions.php. The project lists the following factors found in cases where confessions have been proven false: duress, coercion, intoxication, diminished capacity, mental impairment, ignorance of the law, fear of violence, the actual infliction of harm, the threat of a harsh sentence, and misunderstanding the situation.
3. Cases with DNA evidence constitute only a small fraction of criminal convictions, so these represent the tip of the iceberg. Three-quarters of the first 250 DNA reversals involved ey
ewitnesses’ misidentification. Fifty-eight percent of those who falsely confessed were under seventeen, mentally ill, or develop-mentally disabled. Innocence Project, “250 Exonerated: Too Many Wrongfully Convicted,” 2010; and Innocence Network, “Innocence Network Exonerations 2010,” for statistics through 2010. The first 2011 exoneration: Innocence Project, “Houston Man to Be Declared Innocent After Serving 30 Years for a Dallas Rape and Robbery He Didn’t Commit,” Jan. 4, 2011, http://www.innocenceproject.org. Data through early 2012, Paul Cates, Innocence Project, e-mails, Feb. 17-23, 2012.
4. Richard A. Leo, “Miranda’s Revenge: Police Interrogation as a Confidence Game,” Law and Society Review 30 (1996), pp. 259–88. See also David K. Shipler, The Rights of the People: How Our Search for Safety Invades Our Liberties (New York: Knopf, 2011), chaps. 2 and 3, on police officers’ experience in obtaining widespread consent to search vehicles and belongings.
5. Because this case involved a minor, the records are sealed. All details come from Richard Foxall, a public defender in Alameda County, California, in interviews with the author. Felix declined to be interviewed.
6. In 2009, the Supreme Court decided that the requirement to halt questioning is not triggered unless a suspect explicitly requests a lawyer, and that if he has already been appointed counsel, he may still be questioned without his lawyer present if he is read his Miranda rights and waives them. The opinion related to adult suspects and did not address the questioning of minors. Montejo v. Louisiana, No. 07-1529 (2009). The 5–4 decision overruled Michigan v. Jackson, 475 U.S. 625 (1986), which invalidated any waiver of counsel during police interrogation after a defendant had asserted his right to an attorney in an earlier arraignment or other proceeding. Montejo made it easier for police to initiate questioning without a lawyer present but left in place the requirement, imposed by Edwards v. Arizona, 451 U.S. 477 (1981), that it be stopped if the suspect demanded counsel during the session. The Court loosened the rules further in 2010, ruling unanimously in Maryland v. Shatzer, No. 08-680 (2010), that if more than two weeks pass after a suspect requests a lawyer, he can be re-questioned and again invited to waive his rights. The case concerned a suspect who was in prison for another crime and who demanded an attorney when he was questioned about allegations that he had sexually abused his three-year-old son. The request for counsel ended the questioning. He was still in jail three years later when the police reopened the investigation, got him to sign another waiver, resumed questioning, and obtained a partial admission. Although he was still incarcerated, the Court ruled that since he had been put back with the normal prison population after the first interrogation, “a break in Miranda custody” had occurred, and he had been returned to “accustomed surroundings and daily routine,” giving him “the degree of control” present at the initial inquiry. By placing a time limit of two weeks on the Edwards presumption of involuntariness, the justices invented a time frame without citing any precedent for it. While concurring with the judgment, John Paul Stevens argued that the fourteen-day period was too brief, and Clarence Thomas argued that it could be too long and should end when custody ended.
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