I was watching Fox News and they were discussing whether the law needed to be changed so US citizens could be interrogated at length without being told their Miranda rights. The rationale is that the suspect is willing to give information if he knows it will not be used against him in a court. Also, he will be more pliable with no lawyer present. And if the information is very valuable, this is a price worth paying. (At least I think this was the gist of the Five on Fox crowd. I was a bit inebriated after a boozy conference meal at the Princeton Conference on Political Economy.)
The Five on Fox usually rail against rampant Leviathan – an uncontrolled government usurping the rights of honest, gun toting, red meat eating citizenry. That same Leviathan, if given the power to use domestic enemy combatant status, would apply it more and more broadly. A domestic enemy combatant is actually harder to define objectively than an assault weapon. A slippery slope would undoubtedly ensue and regular citizens would face being interrogated as enemy combatants. This is the risk of adopting the view of the illustrious Five.
But what about the benefits of greater Leviathan power, the power to interrogate true enemy combatants? We know Leviathan breaks the law at the risk of being held to account in court. There is no point running this risk in run of the mill cases. But there is a benefit in true enemy combatant cases. No jury will convict Leviathan in the latter case – the court of public opinion will replace the court of law. But egregious violations in run of the mill cases will surely lead to convictions by triggering the feeling “that could have been me” in jury members. So, roughly speaking, the law will be broken if and only if the case merits it.
Hence, there is no need for “domestic enemy combatant” status w.r.t. Miranda rights.
HT: I believe Becker and/or Posner made a similar argument years ago. If someone can tell me the reference I would be grateful.
Cheap Talk 
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April 24, 2013 at 7:51 pm
Michael Stack
I’m not sure if Becker/Posner made a similar argument, but Alex Tabarrok did, but it was regarding torture:
http://marginalrevolution.com/marginalrevolution/2005/11/torture_terrori.html
That really stuck with me. I think Brad DeLong argued the same way, but I can’t find his blog post.
April 24, 2013 at 10:42 pm
Sandeep Baliga
Thanks, Mike. This is the same point. I still think Becker/Posner made it first. I’ll find the reference one day.
April 25, 2013 at 2:21 pm
Michael Stack
Aha! I think I found it.
“Take the power to torture a suspect or to suspend the right to challenge a detention through a habeas corpus petition. Posner thinks these powers are sometimes necessary, and chides civil libertarians for asserting otherwise. But that doesn’t mean he wants the legislature or the courts to give them to the executive ahead of time. Instead, he says, government officials should make do without legal cover. That way, “they will be reluctant to act unless a powerful moral justification, overriding the infamy of a legal violation, can be advanced.” Posner says he’s asking for a form of civil disobedience: “While the term is usually applied to private individuals who deem it their moral duty to disobey positive law, there is no reason why it cannot also be used of public officials who do the same thing,” he writes.”
http://www.nytimes.com/2006/09/10/books/review/Bazelon.t.html?_r=0
April 25, 2013 at 11:16 pm
Sandeep Baliga
Michael: Thanks so much! This is it I guess. I’ll get the book to see what he says in more detail.
Sandeep
April 27, 2013 at 5:35 pm
o
Based on the dates, seems that maybe Alex Tabarrok was first.
May 1, 2013 at 6:42 am
Blissex
«No jury will convict Leviathan in the latter case – the court of public opinion will replace the court of law.»
Popularity trumping civil rights and mob lynching have always been part of the USA legal tradition, two quotes from DeToqueville’s “Democracy in America”:
«When a man or a party suffers from an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? That represents the majority and obeys it blindly. To the executive power? That is appointed by the majority and servers as is passive instrument. To the public police force? They are nothing but the majority under arms. To the jury? That is the majority invested with the right to pronounce judgements; the very judges in certain states are elected by the majority. So, however unfair or unreasonable the measure which damages you, you have to submit.
A striking example of the excesses which the despotism of the majority may occasion was seen in Baltimore during the war of 1812. At that time the war was very popular in Baltimore.
A newspaper opposed to it aroused the indignation of the inhabitants by taking that line. The people came together, destroyed the printing presses and attacked the journalists’ premises. The call went out to summon the militia which, however, did not respond to the call. In order to save those wretched fellows threatened with by the public frenzy the decision was taken to put them in prison like criminals.
The precaution was useless. During the night the people gathered once again; when the magistrates failed to summon the militia, the prison was forced one of the journalists was killed on the spot and the others were left for dead. The guilty parties, when standing before a jury, were acquitted.»
«I said to someone who lived in Pennsylvania: “Kindly explain to me how, in a state founded by Quakers and celebrated for its tolerance, free Negroes are not allowed to exercise their civil rights. They pay their taxes; is it not fair that they should have the vote?”
“You insult us,” he replied, “if you imagine that our legislators committed such a gross act of injustice and intolerance.”
“Thus the blacks possess the right to vote in this country?”
“Without any doubt.”
“So, how does it come about that at the polling-booth this morning I did not notice a single Negro in the crowd?”
“That is not the fault of the law,” said the American to me. “It is true that the Negroes have the right to participate in the elections but they voluntarily abstain from making an appearance.”
“That is indeed very modest of them.”
“It is not that they are refusing to attend, but they are afraid of being mistreated. In this country it sometimes happens that the law lacks any force when the majority does not support it. Now, the majority is imbued with the strongest of prejudices against the blacks and the magistrates feel they do not have enough strength to guarantee the rights which the legislator has conferred upon them.”
“So you mean that the majority, which has the privilege of enacting the laws, also wishes to enjoy the privilege of disobeying them?”»
May 1, 2013 at 8:29 pm
Jihan
The problem with these arguments is a fundamental misunderstanding of Miranda. The government is under no obligation to read anyone (US citizen or not) Miranda rights; they are free to question them all they want. However, any statements made are only admissible in court if they were preceded by such warnings. So in cases with lots of evidence (e.g. Boston Marathon), the government was under no obligation to read the suspect his rights (though it eventually chose to do so). Courts have even held that the police can get a confession, then read Miranda, then have the suspect repeat the confession, and use that in court.
June 12, 2013 at 6:51 am
Gulsen
He is gonna get killed for sure , am Iraqi and i know the sttoaiiun in Iraq , the thing is that we dont have democracy like there is no order if someone mess up with our fcked up government he/she will get killed just like an animal which is really sad because the rest of the world thinks that American brought us freedom or democracy but infact they distroyed us and they think that they are doing us a favor which also sad.By the way I like the idea of the NIKE sponsership hahahahhahah
June 12, 2013 at 10:22 pm
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September 2, 2013 at 4:24 pm
Brenda
The auto example is kind of amnsuig really. I recall taking a course not that long ago on optimal communication with one’s customers. One of the central pillars of this course was that customers generally had one of several motivations that drove their behavior and their emotional response to your offers. The big ones were status, price, security, convenience, and discovery (defined in that context as a longing for the ‘latest and greatest’). Methods of identifying the primary motives of the customer were discussed (primarily it is in the language that the customer uses when talking about their desires). But status was a huge one, and my favorite customers have status as a primary and convenience as a secondary :-> You’d be surprised just how common that motive pairing is.
October 17, 2013 at 8:27 am
Gilbert
Why, then is SAF negotiating to get HB1588 paessd in Washington State? I was considering joining up until I read about that. Any law that prohibits me from simply handing any of my guns to my wife, or to one of my children when they are of legal age, and saying This is now yours, is unconstitutional and unacceptable. I don’t like waiting around for the NICS check, but I understand it. Making private party sales illegal just begs for a larger black market and makes criminals of law-abiding citizens, as do magazine restrictions and bans on specific makes and models.Hell I know I’m preaching to the choir here. So does anyone have any insight as to why SAF is doing this?
October 19, 2014 at 12:07 pm
damascus knives
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up!