Preface

   
Foreword By Janet Napolitano, Governor of Arizona
   
Table of Contents
   
Excerpts
  Miranda's Confession
   
  Right to Counsel
   
  Privilege Against Self-Incrimination
   
  Miranda and the Arizona Supreme Court
   
  Birth of the Miranda Warnings
   
  John Frank as Architect of the Miranda Doctrine
   
  John Flynn's Oral  Argument at the Supreme Court
   
  Gary Nelson's Oral Argument for Arizona
   
  Thurgood Marshall's Oral  Argument at the Supreme Court
   
  The Opinion
   
  The Miranda Warnings
   
  The Ongoing Debate
   
  The Dickerson Case
   
  Miranda's Global Reach
   
 

Miranda and the al Qaeda Terror

   
  Padilla and Hamdi
   
  False Confessions and the Tuscson Four
   
  Political Ideology and the Supreme Court
   
  Dickerson's Legacy
   
  Gideon's Legacy
   
  The Evolution of Miranda
   
  Bibliography

 

from Chapter 7

The Other American Taliban - Jose Padilla and Esam Hamdi

Excerpts from the Preface and pages 136-138

As it turned out, Lindh was not the only American Taliban. Several other young Americans have also adopted militancy and violence in the name of Islam, and at least two have emerged from the shadowy world of al Qaeda to be confronted with their own legal battles. Yaser Esam Hamdi and Jose Padilla were “out of school, unemployed, loose molecules in an unstable social fluid that threatened to ignite,” according to Robert D. Kaplan. Another analyst, Dr. Don Beck, expanded on the growing instability of this disenfranchised segment of the population Kaplan was referring to:

Here is a simplistic, seventh-century, puritanical, and closed value structure that is locked in a pre-modern mind-set. Unhappily, it’s the next step for millions of youth who have been shut out, frustrated, and left behind as they see their counterparts, both next door, and in other societies, thriving and prospering. And it transcends racial or ethnic categories, which is why it is such a threat.

Yaser Esam Hamdi was born in Louisiana, raised in Saudi Arabia, and detained in the United States while his suspected ties to al Qaeda were investigated. It seems that Hamdi, armed with a Kalashnikov rifle, had been captured in Afghanistan in December 2001 when his Taliban fighter group surrendered. At that time, he told military investigators that he had come to Afghanistan several months before to train and fight with the Taliban. Initially airlifted to the U.S. Marine base at Guantanamo Bay, Hamdi was transferred to a military jail in the United States after his claim of birth in Louisiana was confirmed. Secretary of Defense Donald Rumsfeld quickly determined that Hamdi had been both armed and fighting with enemy forces on foreign soil, and President Bush classified Hamdi as an “enemy combatant” and confined him indefinitely to the American military prison camp.

Hamdi’s lawyers, who had not actually talked to him, argued that his Fifth Amendment rights were violated. The Fourth Circuit Court of Appeals disagreed, twice. The law is clear that trial judges are obliged to accord “great deference” to the executive branch’s classification of men like Hamdi as enemy combatants. Is Hamdi entitled to remain silent and to the presence of an attorney? Those questions were submitted to the United States Supreme Court in Hamdi v. Rumsfeld.  In June of 2004, the Court handed down a partial answer to these questions.  The Court held that Hamdi’s detention for two years as “enemy combatant” held that his detention was proper and could be continued but that he had a right to challenge the justification for his detention (i.e., his status as an enemy combatant) before a neutral decisionmaker. 

Jose Padilla, born in Puerto Rico but raised in Chicago, was also detained in the United States while his alleged attempt to detonate a “dirty bomb” was investigated. Padilla had changed his name twice - first to Ibrahim and then to Abdullah al Muhajir, which means “the emigrant” - to reflect his affiliation with Islam. By the time he became infamous in American society, he was a Chicago street-gang member, an ex-convict, and a convert to Islam. Georgie Anne Geyer of the Tulsa World described him as “an immigrant between ideologies, between ways of life and surely between loyalties.”

Padilla had served time in jail in both Chicago and south Florida before moving to Egypt, then to Pakistan, and finally to Afghanistan as part of the al Qaeda network. On May 8, 2002, he was arrested as he stepped off a plane in Chicago after flying in from Zurich and was held for an indeterminate period in military custody as a suspected terrorist. In alleging that Padilla belonged to an al Qaeda cell that had plotted to detonate a radioactive explosive device in the United States, government officials reported that Padilla had discussed the bomb plot with al Qaeda leaders in Pakistan and Afghanistan.

Defense Secretary Donald Rumsfeld said the government wanted to question, rather than prosecute, Padilla. It is, of course, the government’s duty to protect its citizens and prevent al Qaeda terrorists from delivering the nuclear devastation that they have threatened. Consequently, following Padilla’s initial detention at O’Hare, federal agents subpoenaed him to testify before a grand jury. When he refused, President Bush declared him an “enemy combatant” under the War Powers Act. This subjected Padilla to arrest, not as a suspect but as a material witness. Under the War Powers Act, a material witness can be held indefinitely.  In Rumsfeld v. Padilla, the Court held that Padilla had filed his habeas petition in the wrong court. Presumably, when Padilla re-files his petition in the right court, he will be given the same rights as Mr. Hamdi.

The larger question of the extent to which domestic Miranda rights should be respected on foreign soil or on American sovereign territory is the subject of an important Supreme Court opinion handed down at the end of the Court’s term in June of 2004.  In Rasul v. Bush, the Court held that non-citizen detainees held at the U.S. naval base at Guantanamo Bay, Cuba, have a right to file habeas corpus petitions in federal courts to challenge the legality of their detention.

Justice Sandra Day O’Connor is as close to these large questions as anyone could possibly be. She is at the center of the Court and the center of American thought when she says, as she did in the Hamdi case, “Striking the proper constitutional balance . . . is of great importance to the nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds so dear or to the privilege that is American citizenship.”

 


 

Miranda: The Story of America's Right to Remain Silent
Copyright © 2004, Gary L. Stuart. All rights reserved.
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page last revised: 10/25/04