Fifty years ago, the United States Supreme Court handed down its decision in Miranda v. Arizona, ruling that the constitutional guarantees of legal representation and against self-incrimination had to be made meaningful by police procedures that would warn suspects of their rights and ensure that any waiving of them was done “voluntarily, knowingly and intelligently.”
Hence the routine, familiar now from two generations of American cop shows, in which police will warn a suspect that they have the right to remain silent, that if they choose not to then anything they say can be used in evidence against them, that they are entitled to speak to a lawyer and have their lawyer present during questioning, and that if they cannot afford a lawyer then the state will provide one.
It is so familiar and so obviously reasonable that it is easy to forget how controversial Miranda once was. It was a 5-4 decision; the dissenting justices argued that “nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities.”
They were echoed by numerous conservative politicians and pundits. In 1968 Congress tried to modify the decision in relation to federal criminal law, an attempt that was later ruled unconstitutional (with justices Scalia and Thomas dissenting). Subsequent cases, particularly the 5-4 decision in Berghuis v. Thompkins in 2010, have modified the original doctrine in some respects, but its essentials remain firmly in place.
But although Miranda warnings have, as the court said in a later decision, “become part of our national culture,” this isn’t just old news. The fact that making law enforcement agencies act within the law has not, in reality, led to an explosion of crime and imperilled society, has done nothing to quiet that impulse to lawlessness that is at the heart of the conservative mindset.
Witness the horrific story of the return of torture under the Bush administration, analysed in a recent book by Irish neuroscientist Shane O’Mara, reviewed last week by Tom Hyland at Inside Story. O’Mara’s basic point is not that torture is morally unacceptable (although it is), but that it just doesn’t work: it’s not a reliable method of producing good evidence or intelligence.
In Hyland’s words, “the scientific evidence, backed by accounts from those subjected to it and those who’ve inflicted it, shows that it fails completely on its own terms.” The contrary view espoused by the Bush administration, he says, was based on “little more than folklore and wishful thinking.”
Yet leading Republicans, including presidential candidate Donald Trump, continue to defend the torture program and to promise its renewal if they are elected. It’s just another stage of their 50-year-long war against evidence and legality.
In a way, I think Hyland is being too charitable: he assumes that Bush, Cheney and the rest were primarily aiming to get information from their victims. But I’m not sure that’s true.
Because, of course, whether or not something “works” depends on what you’re trying to achieve. Torture does work for some purposes. If what you want is to break the will of your captives, to extract fake confessions to use in a show trial, or just to hurt your real or perceived enemies or even to highlight your own ruthlessness, torture is supremely effective.
Behind the familiar “tough on crime” or “tough on terrorism” rhetoric, we need to learn to look at what its proponents are really aiming at. The answer might not be pretty.