from Chapter 7 Miranda and Osama bin Laden - The Global Reach

Excerpts from pages 131-132

One of the many unpredictable consequences of Miranda’s development is the globalization of America’s right to remain silent. It has spread from police stations in America to custodial interrogations of foreign nationals in foreign countries. In 1998, for instance, two non-U.S. citizens were arrested in Kenya and South Africa for their alleged involvement in bombing the U.S. embassies in Kenya and Tanzania. Eventually identified as Saudi Arabian nationals, the suspects were interrogated by FBI agents after they were given printed forms indicating the “possibility” that they lacked the right to counsel during the interrogation. The forms did not contain all of the now customary Miranda rights. Both suspects gave oral and written statements incriminating themselves in the embassy bombings, and their statements were evaluated, along with other evidence.

When the investigation was complete, the Saudi suspects were indicted by a federal grand jury and charged with terrorism and related capital crimes in the U.S. District Court in New York. American lawyers were retained to represent the men. As one of their first legal efforts, they filed motions to suppress the incriminating statements made to the FBI while in custody overseas. U.S. District Judge Leonard B. Sand duly suppressed the statement given by the defendant arrested in Kenya because he had confessed to being involved in the bombings before he was advised of his Miranda rights. The motion to suppress filed by the suspect interrogated in South Africa, however, was denied because he had been apprised of his Miranda rights.

Neither defendant was considered the primary instigator of the destructive bombings. That distinction falls to Osama bin Laden, the primary target of the federal grand jury in 1998. As noted in at least one of the critiques of the bin Laden case, the FBI, with understandably increasing frequency, travels to other nations to investigate violations of American criminal law by non-American citizens who are “suspects” and often in the custody of a foreign law-enforcement agency. Does the Fifth Amendment’s privilege against self-incrimination apply to non-American citizens who confess to American authorities abroad and who are later tried in this country? And if the Fifth Amendment does apply, does an FBI inquisitor have to provide Miranda warnings to non-American suspects in a foreign country?

No other country in the world requires its police to issue Miranda warnings. That fact alone creates a conundrum for the FBI and other American law enforcement agencies, for if a foreign suspect is Mirandized on foreign soil, in a nation that does not recognize the right to remain silent nor provide counsel in pretrial settings, then Miranda warnings are inherently misleading.

Largely because of this globalization of Miranda in the bin Laden case, the United States District Court divided its review into two parts: the right to remain silent and the right to counsel. The court held that a non-American suspect must be told he has the right to remain silent; however, a non-American suspect must be advised that he would have a right to counsel only if he were in the United States, and the interrogator must be “clear and candid as to both the existence of the right to counsel in the foreign country and the possible impediments as to its exercise.”