{"id":3419,"date":"2021-01-18T17:23:25","date_gmt":"2021-01-18T17:23:25","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3419"},"modified":"2021-01-18T17:23:25","modified_gmt":"2021-01-18T17:23:25","slug":"exporting-miranda-how-fifth-amendment-protections-fall-flat-in-overseas-interrogations","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2021\/01\/18\/exporting-miranda-how-fifth-amendment-protections-fall-flat-in-overseas-interrogations\/","title":{"rendered":"Exporting Miranda: How Fifth Amendment Protections Fall Flat in Overseas Interrogations"},"content":{"rendered":"\n

(Source<\/a>)<\/p>\n\n\n\n

In the past twenty years, American law enforcement and the\nFederal Bureau of Investigation have increased their presence abroad. This\nincreased presence is due in part to terrorist attacks against American targets\nand narcotics trafficking that affects U.S. citizens.<\/a> Law enforcement\u2019s\nrole overseas is to investigate violations of American criminal laws committed\nby non-U.S. citizens. <\/p>\n\n\n\n

An integral component of the investigation process includes interrogating suspects. In the United States, any interrogated suspect is constitutionally protected by the Fifth Amendment right against self-incrimination<\/a>. However, does this same right apply to non-citizens abroad? Per circuit courts\u2019 understanding, the Fifth Amendment still applies in offshore interrogations. What is less clear is how this right must be given effect when interrogating non-citizens. <\/p>\n\n\n\n

Miranda v. Arizona<\/strong><\/em> and its Framework<\/strong><\/p>\n\n\n\n

Domestically, the Fifth Amendment right\nagainst self-incrimination<\/a> protects suspects during pretrial investigations.\nIn the landmark case Miranda v.\nArizona<\/em><\/a>, the Supreme Court held that prosecutors may not use statements,\nwhether exculpatory or inculpatory, stemming from the custodial interrogation\nof a detainee, unless the prosecution demonstrates the use of procedural\nsafeguards. These safeguards ensure the privilege against self-incrimination. Miranda<\/em><\/a>,\ntherefore, mandates that before engaging a suspect in custodial interrogation,\nlaw enforcement officials must inform the suspect that he has a right to remain\nsilent, that any statement he does make may be used as evidence against him,\nand that he has the right to the presence of an attorney during the\ninterrogation, either retained or appointed. A defendant may waive these rights\nas long as the waiver is made voluntarily, knowingly, and intelligently. Furthermore,\nif the suspect wishes to consult an attorney before any questioning, the\ninterrogation must stop. In creating this framework, the Supreme Court was\nconcerned with the psychological elements of questioning that coerce defendants\ninto admitting guilt. The Court intended to protect suspects from the inherent\ncompulsion of an interrogation setting. Lastly, Miranda\u2019s<\/em> framework is\nabout choice: the suspect should freely and voluntarily determine for\nthemselves whether to make incriminating statements. <\/p>\n\n\n\n

Miranda\u2019s <\/em>framework has endured for over sixty years. Today, Miranda <\/em>warnings form an intrinsic part of the criminal justice system. However, the Supreme Court made clear that Miranda<\/a><\/em> is not a \u201cconstitutional straightjacket.\u201d<\/a> In other words, Congress and states can continue searching for other options or safeguards to protect suspects from incriminating themselves. Until new effective safeguards are found, however, the framework outlined in Miranda<\/em> must be used. <\/p>\n\n\n\n

Courts\u2019 Former Understanding of <\/strong>Miranda\u2019s<\/strong><\/em> Applicability Abroad<\/strong><\/p>\n\n\n\n

The issue of Miranda\u2019s<\/em> applicability overseas first came up fourteen years after the Supreme Court handed down its initial decision. In United States v. Dopf<\/em><\/a>, an FBI agent interrogated defendants who had transported a stolen a car from Texas to Mexico. The interrogations took place in Mexico. Prior to questioning, the agent informed defendants that they had a right to remain silent but that the agent \u201ccould not offer them an attorney in Mexico.<\/a>\u201d The defendants later made incriminating statements but, at trial, moved to suppress them. The Court of Appeals for the Fifth Circuit upheld the conviction, holding that as long as the American interrogator did everything \u201cthat he reasonably could have done\u201d to advise suspects \u201cof their right to remain silent, of the possible use against them of incriminatory statements, of the reason why they could not be furnished counsel by the U.S. Government while they were in Mexico and of the availability of the American Consul for their assistance<\/a>,\u201d admissions would be allowed at trial without depriving defendant of their Fifth Amendment right. Thereafter, in a similar case, Cranford v. Rodriguez<\/em><\/a>, the Tenth Circuit held that Miranda <\/em>should apply abroad but also recognized that because it was not possible to obtain an attorney, \u201cthis should not mean that while the defendant is in detention investigation must stop.<\/a>\u201d In doing so, the court approved a recitation of rights that did not inform the suspect of his right to an appointed attorney if he wished to have one.<\/p>\n\n\n\n

As U.S.\nv. Dopf<\/em><\/a> and Cranford\nv. Rodriguez<\/em><\/a> demonstrate, the lower courts were beginning to diverge\nfrom Miranda\u2019s<\/em> prophylactic rules as applied to overseas interrogations.\nSpecifically, lower courts were not honoring Miranda\u2019s<\/em> mandate that law\nenforcement inform the suspect of his right to counsel during an interrogation.\nAdditionally, lower courts were hesitant to require that an overseas\ninterrogation cease when a suspect asked for an attorney. In the lower courts\u2019 view,\nlaw enforcement\u2019s inability to provide counsel in an overseas setting was a\nreasonable constraint that did not require stopping the interrogation.  <\/p>\n\n\n\n

The Modern Framework: <\/strong>U.S. v. Bin Laden<\/strong><\/em> and its Appellate Counterpart<\/strong><\/p>\n\n\n\n

On August 7, 1998, suicide car bombers detonated explosives<\/a> outside the U.S. Embassy Buildings in Dar es Salaam, Tanzania. Two hundred and twenty-four people were killed.<\/a> FBI agents immediately flew to Nairobi to investigate.<\/a> Mohamed Rashed Daoud Al-Owhali, a non-U.S. citizen, was taken into custody and interrogated. FBI agents introduced Al-Owhali to an Advice of Rights form<\/a> that stated the following: \u201cIn the United States, you would have the right to talk to a lawyer to get advice before we ask you any questions and you could have a lawyer with you during questioning. In the United States, if you could not afford a lawyer, one would be appointed for you, if you wish, before any questioning.Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning.\u201d During the course of the exchange with the FBI agents, Al-Owhali made several incriminating statements.<\/a> At trial, he and his attorney moved to suppress the statements<\/a>, arguing that Kenyan law did not prohibit Al-Owhali from having an attorney at the interrogation. <\/p>\n\n\n\n

In U.S.\nv. Bin Laden<\/em><\/a>, the Court for the Southern District of New York considered\nwhether the Advice of Rights form was valid. Judge Sand wrote the opinion and\nindicated that Miranda\u2019s<\/em> \u201cwarning\/waiver framework\u201d applies abroad. This\nmeant that in order to protect defendants from incriminating themselves in\ncoercive custody environments, suspects overseas must be informed of the right\nto remain silent. Concerning the right to counsel, Judge Sand held that law\nenforcement was required to investigate the local laws of the foreign country\nto determine whether or not the suspect was allowed to have counsel present\nduring the interrogation. Specifically, \u201c[t]o\nthe maximum extent reasonably possible, efforts must be made to replicate what\nrights would be present if the interrogation were being conducted in America.<\/a>\u201d\nEssentially, Judge Sand wanted Miranda\u2019s<\/em> framework to be honored in its\noriginal form. In doing so, Judge Sand departed from the holdings in U.S. v\nDopf<\/em> and Cranford v. Rodriguez<\/em> which did not honor the right to\ncounsel in an overseas interrogation in the same manner. Nonetheless, in his\nview, U.S. law enforcement must respect local custom with regards to a\nsuspect\u2019s right to an attorney at an interrogation. <\/p>\n\n\n\n

In U.S. v. Bin Laden<\/em>\u2019s appellate counterpart, In re Terrorist Bombings of U.S. Embassies in East Africa<\/em><\/a>,<\/em> the Second Circuit affirmed that \u201cforeign nationals interrogated overseas but tried in the civilian courts of the United States are protected by the Fifth Amendment\u2019s self- incrimination clause.<\/a>\u201d However, while the Second Circuit also agreed with Judge Sand\u2019s assessment of the right to remain silent in overseas interrogations, they disagreed with his holding concerning the right to counsel abroad. The Second Circuit believed that Miranda<\/em> is satisfied as long as the detainee is simply informed of his rights under the U.S. Constitution. The Second Circuit disagreed that law enforcement agents needed to \u201cthe maximum extent reasonably possible, [make] efforts to replicate<\/a>\u201d the rights of the suspect as if the interrogation were conducted on home soil. Instead they held that U.S. agents overseas \u201cneed not become experts in foreign criminal procedure in order to comply with Miranda<\/em>; nor need they advocate for the appointment of local counsel on a foreign suspect\u2019s behalf<\/a>.\u201d Rather than adopt Judge Sand\u2019s standard, the Second Circuit holds law enforcement agents to a lesser responsibility: they need not scrupulously attempt to uphold the detainees\u2019 right to counsel even if the law of the foreign country permits counsel at a suspect\u2019s interrogation. In essence, the Second Circuit\u2019s decision is much closer to what U.S. v. Dopf<\/em> and Cranford v. Rodriguez<\/em> deemed adequate concerning the detainees\u2019 right to counsel in an offshore interrogation. <\/p>\n\n\n\n

Analysis<\/strong><\/p>\n\n\n\n

The courts have come a long way: the Fifth Amendment does\napply to detainees in offshore interrogations in some respects. This means that\nthe warning\/waiver format protecting a detainee\u2019s right to remain silent is\nstill applicable. However, the circuit courts\u2019 current understanding of\nMiranda\u2019s applicability abroad fails to honor the detainee\u2019s right to counsel\nduring an interrogation. <\/p>\n\n\n\n

It is understandable that U.S. courts would not require law\nenforcement to supersede foreign law that explicitly prohibits attorneys for\ndetainees during interrogations. Doing so would raise obvious issues of comity<\/a> in the long run and\nstrain U.S. relations with foreign countries. However, when balanced against\nthe need to protect suspects from coercive interrogation environments, a\nframework must be created that allows detainees to access counsel in offshore\ninterrogations. Otherwise, the threat that agents will not cease interrogation\nonce the right to counsel has been invoked looms large. By not demanding that\nlaw enforcement make maximum efforts to replicate the detainee\u2019s constitutional\nrights in a foreign setting, the Second Circuit and other circuit courts\nundermine Miranda\u2019s<\/em> aim of protecting the suspects\u2019 right against\nself-incrimination. Lastly, while the Supreme Court in Miranda v. Arizona<\/em>\nmade clear that Miranda<\/em> warnings are not \u201ca constitutional\nstraightjacket,\u201d it also held that until new and better safeguards were\ndeveloped, Miranda<\/em>\u2019s framework must be used. There is nothing \u201cbetter\u201d\nabout court holdings that potentially threaten the detainees\u2019 right to counsel\nin an interrogation. <\/p>\n\n\n\n

The Supreme Court of the United States has never directly\naddressed the issue of Miranda<\/em> in offshore interrogations. Were it to\never answer the question of Miranda\u2019s<\/em> applicability abroad, it would\nundoubtedly have to decide between the District Court\u2019s approach in Bin\nLaden<\/em> or the Second Circuit\u2019s holding in In re Terrorist Bombings<\/em>. Alternatively,\nit could create a new rule. Some\nscholars suggest<\/a> that detainees should be allowed to access counsel even\nwhen the interrogation takes place in a jurisdiction where foreign law forbids\nthe presence of counsel at an interrogation. While this is the ideal scenario\nfor all non-citizen detainees, it is hard to envision the Supreme Court\nmandating such a rule given the need to protect U.S. foreign relations. In\nlight of this, Judge Sand\u2019s approach in Bin Laden<\/em> seems to be, for now,\nthe sounder measure. Balancing comity against the compulsion of interrogations\nmakes Judge Sand\u2019s approach perhaps one that, in the Supreme Court\u2019s eyes,\nwould be viable.  <\/p>\n\n\n\n

\"\"<\/figure>
\n

About the Author: Luis Manuel Rico Rom\u00e1n is a 2L student at Cornell Law School. He received his undergraduate degree in German and Government & Legal Studies from Bowdoin College. Before attending law school, he conducted research in Germany under a Fulbright Research Fellowship on refugee integration policy. <\/p>\n<\/div><\/div>\n\n\n\n

Suggested Citation: Luis Manuel Rico Rom\u00e1n, Exporting Miranda: How Fifth Amendment Protections Fall Flat in Overseas Interrogations<\/em> Cornell J.L. & Pub. Pol\u2019y: The Issue Spotter (Jan. 18, 2021), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/exporting-miranda-how-fifth-amendment-protections-fall-flat-in-overseas-interrogations\/<\/a>. <\/p>\n","protected":false},"excerpt":{"rendered":"

(Source) In the past twenty years, American law enforcement and the Federal Bureau of Investigation have increased their presence abroad. This increased presence is due in part to terrorist attacks against American targets and narcotics trafficking that affects U.S. citizens. Law enforcement\u2019s role overseas is to investigate violations of American criminal laws committed by non-U.S….<\/p>\n","protected":false},"author":1,"featured_media":3420,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,21,25,27,28],"tags":[647,849,858,879,1037],"class_list":["post-3419","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-spotters","category-policycontributor-blogs","category-recent-stories","category-student-blogs","tag-fifth-amendment","tag-international","tag-interrogation","tag-jlpp","tag-miranda"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3419","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3419"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3419\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/3420"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3419"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3419"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3419"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}