Full opinion text
OPINION SAND, District Judge. Presently before the Court are several motions to suppress evidence on behalf of Defendants Mohamed Rashed Daoud Al-‘Owhali (“Al-‘Owhali”), Khalfan Khamis Mohamed (“K.K.Mohamed”), and Mohamed Sadeek Odeh (“Odeh”). For the reasons described below, Al-‘Owhali’s motion is granted in part and denied in part, whereas K.K. Mohamed’s motion is denied in its entirety. We address Odeh’s motions in a separate sealed opinion also filed today. I. Procedural History On October 13, 2000, Al-'Owhali moved to suppress the following: (1) all statements made during interrogation by U.S. law enforcement representatives while Al-'Owhali was held in Kenya under Kenyan custody; and (2) an out-of-court witness identification conducted by Kenyan authorities according to Kenyan procedure. A hearing was held on December 12 and 14, 2000, although the motion itself was not fully submitted until December 29. Jury selection commenced on January 3, 2001. In a sealed opinion dated January 9, we granted the motion to suppress, addressing only the admissibility of statements made by Al-‘Owhali to U.S. officials. One week later, on January 16, the Government moved for a reconsideration of our ruling and for a reopening of the suppression hearing. Because the Government’s proffer sufficiently indicated the need to further develop the factual record, we granted the motion for reconsideration and withdrew our January 9 sealed opinion. The renewed hearing was held on January 23 and the motion became fully submitted at the close of business on January 26. To accommodate expeditious resolution of the suppression issue, jury selection was suspended between January 23 and 26. Two days after our initial granting of Al-‘Owhali’s motion, K.K. Mohamed moved on January 11 to suppress statements he made to U.S. agents while he was held in South Africa under South African custody. A hearing was specifically not requested. That motion became fully submitted at noon on January 24. II. Findings Of Fact A. DEFENDANT AL-'OWHALI We base the following findings of fact on the testimony of the FBI Special Agent (“S.A.”) and Assistant U.S. Attorney (AUSA) who interrogated Al-'Owhali in Kenya, the testimony of the FBI Language Specialist who provided Arabic translation services during most of Al-‘Owhali’s interrogation, and the numerous stipulations, documents, and affidavits admitted into evidence for purposes of the suppression hearings. The Airest 1. S.A. Gaudin is currently a member of the Joint Terrorist Task Force based in New York City (“JTTF”). On August 7, 1998, S.A. Gaudin was instructed to travel to Kenya and assist in the joint U.S.-Kenyan investigation of the U.S. embassy bombing in Nairobi that had occurred earlier that same day. He arrived in Nairobi on August 9. It was S.A. Gaudin’s understanding that, while there, he was not authorized to make arrests. 2. On August 12, supervisors in Nairobi assigned S.A. Gaudin to pursue a tip concerning a suspicious individual staying at the Iftin Lodge, a hotel located in the Eastleigh neighborhood of Nairobi. Accompanying him were FBI Special Agent Steve Bongardt, New York City Police Detective Wayne T. Parola (also a member of JTTF), two officers of the Criminal Investigation Division of the Kenyan National Police (“CID”), and a Kenyan driver working for the Kenyan police. Together they drove to Iftin Lodge in a covered’pickup truck. 3. At approximately 10 a.m. on August 12, the two CID officers entered Iftin Lodge, confronted the individual who was the subject of the lead, and arrested him without a warrant due to his lack of paper identification. Such an arrest was valid under Kenyan law. 4. The suspect was Defendant Al-‘Owhali, though at that time he represented that his name was “Kalhad Salim” and that he was from Yemen. On his person were $800 in U.S. currency, some amount of Kenyan cash, and a hospital stub indicating Al-‘Owhali’s receipt of medical treatment on August 7, the day of the bombing. 5. Al-‘Owhah was removed from Iftin Lodge by the CID officers and placed into the rear of the truck. Seated inside were S.A. Gaudin, S.A. Bon-gardt, and Detective Parola; the three had never entered Iftin Lodge themselves. 6. Al-‘Owhali was immediately transported without incident to CID headquarters in Nairobi, about a 26-30 minute drive. No questions were asked of the suspect, but S.A. Gaudin did speak in English to inform Al-‘Owhali of the intended destination and to reassure him of his safety. The Advice of Rights and Subsequent Interrogation 7. Interrogation of Al-‘Owhali commenced at around 11 a.m. on August 12. Present were S.A. Gaudin, Detective Parola, and the two CID officers. 8. Detective Parola began the session by presenting the suspect with a modified advice of rights form written in English (“the AOR”). S.A. Gaudin admitted to having never seen an AOR like it before, although it is one apparently used often by U.S. law enforcement when acting overseas. 9. In its entirety, the AOR read as follows: We are representatives of the United States Government. Under our laws, you have certain rights. Before we ask you any questions, we want to be sure that you understand those rights. You do not have to speak to us or answer any questions. Even if you have already spoken to the Kenyan authorities, you do not have to speak to us now. If you do speak with us, anything that you say may be used against you in a court in the United States or elsewhere. In 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. If you decide to speak with us now, without a lawyer present, you will still have the right to stop answering questions at any time. You should also understand that if you decide not to speak with us, that fact cannot be used as evidence against you in a court in the United States. I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. 10. S.A. Gaudin had no instructions on how to proceed in the event that Al-‘Owhali requested the presence of an attorney. 11. Detective Parola asked Al-‘Owhali (in English) whether he could read the AOR. Al-‘Owhali indicated that he could not read English, but that he could understand spoken English to a limited degree. 12. Detective Parola read the AOR aloud in English, going slowly and checking for visual signs of comprehension. Al-‘Owhali appeared to understand, replied that he understood when asked, and signed his alias at the bottom of the AOR in Arabic when requested to do so. 13. The FBI interpreter who was present at most of Al-Owhali’s interrogations in Kenya testified that, in his opinion, Al-‘Owhali would likely have had difficulty understanding the AOR if it were only read to him aloud in English. 14. The CID officers did not advise Al-‘Owhali of his rights under Kenyan law, nor did they ever do so during any other day of interrogation. 15. Al-‘Owhali agreed to answer the Americans’ questions and the session continued for roughly one hour. The interrogation was conducted entirely in broken English. Oral Translation of the AOR and Subsequent Intemgation 16. Due to difficulties in communication, it was decided by the interrogators that an Arabic interpreter would be preferable. The parties have stipulated as to the sufficient qualifications ■ of this interpreter, and that she had no trouble communicating with Al-‘Owhali or vice versa. 17. Because the interpreter was afraid for her safety, she remained in the room hidden from Al-‘Owhali at all times behind a blanket used as a makeshift curtain. 18. Present at this afternoon session on August 12, other than the interpreter, were S.A. Gaudin, Detective Parola, and the two CID officers. 19. S.A. Gaudin read aloud the same printed AOR while the translator concurrently translated what was being said into Arabic. Subsequently, Al-‘Owhali indicated that he understood that the warning was the same one as from the morning session and that he understood his rights as described therein. 20. Al-‘Owhali agreed to answer questions. This interview lasted about 3 hours. Continued Interrogation 21. From the outset, Al-Owhali was considered by his interrogators to be a suspect in the embassy bombing, a violation of both U.S. and Kenyan law. S.A. Gaudin understood that he was, at all times, involved in a criminal investigation. 22. Subsequent to August 12, interrogation of Al-‘Owhali took place on eight other days: August 13 (approx. 4 hours), 14 (approx. 2 to 2.5 hours), 17 (approx. 3.5 hours), and 21-25. 23. During the interrogations between August 12 and 17, the primary Americans involved were S.A. Gaudin and Detective Parola. Between August 21 and 25, the primary Americans involved were S.A. Gaudin and S.A. Bongardt. AUSA [redacted] took an active role beginning on August 22. 24. The Kenyan police rarely, if ever, posed questions of their own to Al-‘Owhali. 25. The first interpreter was used only for interrogations between August 12-14. FBI Language Specialist (“L.S.”) Mike Feghali provided translation services from August 17 onward. The Court found L.S. Feghali to be eminently qualified. 26. At the start of each interrogation on August 13, 14, 17, and 21, rather than re-apprise Al-‘Owhali of his rights, the interrogators would simply show Al-‘Owhali the written AOR he had signed on August 12 and inquire if he recalled the description of his rights contained therein. Asked if he would continue to answer questions, Al-‘Owhali agreed. Identification Parade 27. At approximately 12:05 p.m. on August 20, the CID subjected Al-‘Owhali to an identification parade. This procedure is similar to a police station lineup as conducted in the United States, the major differences being that in Kenya witnesses face the array in person and a greater number of stand-ins are used. A positive identification occurs when a witness touches the shoulder of an individual standing in the array. 28. Besides Al-'Owhali, there were 8 stand-ins used in the identification parade. 29. This proceeding was held at the direction of the Kenyans. 30. Six witnesses viewed the parade, but only one recognized Al-‘Owhali. 31. The parade took place away from CID headquarters at the Kilamani Police Station of the Kenyan National Police. S.A. Gaudin and Detective Parola were both present; L.S. Fe-ghali acted as the Arabic translator. 32. When informed that Kenyan law permitted a friend or solicitor to be present, Al-‘Owhali requested a representative from the Yemeni embassy; for reasons unclear, the embassy declined to send a representative at that time. U.S. Missile Strikes 33. During the evening of August 20, it became known in Kenya that the United States had carried out missile strikes against locations in Afghanistan and Sudan which were believed to be associated with Usama Bin Laden. These strikes were in retaliation to the bombings of the U.S. embassies in Kenya and Tanzania. 34. In the ensuing days, some political figures in Kenya announced in public that none of the U.S. embassy bombing suspects should be tried in Kenya. 35. For reasons of safety, much of the American presence in Kenya was pared down to essential personnel. Detective Parola returned to the United States, while S.A. Gaudin, S.A. Bongardt, and AUSA [redacted] remained. Inculpatory Statements 36. From the moment of his arrest on August 12 until late into the August 21 interrogation, Al-‘Owhali consistently denied involvement in the embassy bombing. 37. On August 21, S.A. Gaudin fingerprinted Al-‘Owhali in his holding cell. S.A. Gaudin did so in the belief that he might shortly be leaving Kenya and thought it best to have such evidence in his file. This was the first time Al-‘Owhali had been fingerprinted by either the Americans or Kenyans. 38. For purposes of the August 21 interrogation, S.A. Gaudin and S.A. Bon-gardt related to Al-‘Owhali all the evidence they had thus far amassed against him. 39. After acknowledging that the agents “knew everything,” Al-‘Owhali said that he would tell the truth about his involvement in the bombing if he could be tried in the United States. Al-‘Owhali stated that he wanted to be tried in the United States because the United States was his enemy, not Kenya. 40. Because the agents did not know how to respond to Al-‘Owhali’s demand for a guarantee that he would in fact be taken to the United States, the session ended without further questioning. No inculpatory statements were made. 41. On August 22, AUSA [redacted] joined in the interrogation of Al-‘Owhali. Additionally present were S.A. Gaudin, S.A. Bongardt, and the two CID officers. 42. At the start of the meeting, AUSA [redacted] presented to Al-‘Owhali the following document of understanding (“the DOU”), previously approved by AUSA [redacted]’s superiors at the U.S. Department of Justice: I ... have been fully advised of my rights, including my right to remain silent and my right not to answer questions without a lawyer present. As I have been previously told, I understand that anything I say or have said can be used against me in court in the United States. I also understand that if I choose not to answer questions my refusal to answer questions cannot be held against me in court. I further understand that if I choose to answer questions, I can always change my mind and decide not to answer any further questions. I understand that both Kenyan and American authorities are investigating the murder of the various American and Kenyan victims in and around the United States embassy in Nairobi. I have a strong preference to have my case tried in an United States Court because America is my enemy and Kenya is not. I would like my past and present statements about what I have done and why I have done it to be aired in public in an American courtroom. I understand that the American authorities who are interviewing me want to know who committed the bombing of the embassy and how it was carried out. I am willing to waive my rights and answer the questions of American authorities upon the condition that the undersigned law enforcement authorities make all best efforts to see that I am brought to the United States to stand trial. I understand that the undersigned prosecutor is only empowered to make recommendations to the Attorney General of the United States and other executive officials of the United States Government and I further understand that the United States Government only intends to act with the mutual agreement of the Kenyan government. No other agreements or promises have been made other than as set forth in this document. 43. Before the DOU was read to Al-‘Owhali, Al-‘Owhali commented that he might wish to have an attorney review the DOU to make sure it was enforceable. 44. As a prudential measure, AUSA [redacted] immediately advised Al-‘Owhali of his Miranda rights. This was recited entirely from AUSA [redacted]^ memory of a domestic Miranda warning. AUSA [redacted] made no reference to the AOR utilized on the first day of interrogation. This was all translated by L.S. Fe-ghali. 45. AUSA [redacted] told Al-'Owhali that he had the right to remain silent; that he had the right “to have an attorney present during this meeting;” that even if AI-‘0whali decided to talk he could always change his mind later; that Al-‘Owhali’s statements could be used against him in court, though the fact of his silence could not. AUSA [redacted] also said that he was an attorney for the U.S. government, not for Al-‘Owhali. It was repeatedly stressed to Al-‘Owhali that he was the “boss” at all times as to whether he wished to answer questions without a lawyer present. 46. AUSA [redacted] told Al-‘Owhali that there was no American attorney currently available for him in Kenya. 47. Al-‘Owhali indicated that he understood all of his rights. 48. AUSA [redacted] then read the agreement aloud to Al-‘Owhali through L.S. Feghali. As to each and every paragraph, AUSA [redacted] asked Al-‘Owhali if he understood what had just been explained to him; Al-‘Owhali said yes. At no time did Al-‘Owhali assert his rights. 49. By the time the penultimate paragraph of the DOU was read to him, Al-'Owhali expressed dissatisfaction with the uncertainty associated with just a “recommendation” that he be brought to the United States. As a result, AUSA [redacted] left the room to make further inquiries of his superiors. Before leaving, AUSA [redacted] asked twice if Al-‘Owhali was comfortable proceeding without an attorney; Al-‘Owhali said yes. 50. After more than two hours, Al-‘Owha-li indicated that he would be willing to talk even without a full guarantee because he trusted the U.S. officials to do the best they could to bring him to the United States. 51. AUSA [redacted] returned and asked if Al-‘Owhali was comfortable proceeding without an attorney. Al-‘Owhali said that he was and that he wished to sign the DOU. 52. The DOU was presented to Al-‘Owha-li. It was not re-read to him, though Al-‘Owhali did sign it, but only after advising that the DOU would have to be revised in order to include his true name and nationality. The DOU was signed at 4:36 p.m. Kenyan time. 53. The interrogation on August 22 lasted from 1:10 p.m. to approximately 8:00 , p.m. 54. During the next four days of interrogation, Al-‘Owhali inculpated himself in the embassy bombing. 55. At the beginning of the sessions on August 23, 24, and 25, rather than reread the DOU to Al-‘Owhali, the interrogators simply showed him the document to ensure that he recalled its contents. Asked if he still wished to answer questions, Al-‘Owhali assented. 56. The interviews on August 23 and 24 lasted for about 3 hours, while the August 25 session lasted about 9 hours. Immunity Deal 57. Late into the August 25 interrogation, Al-‘Owhali indicated that he possessed time-sensitive information regarding an issue of public safety, but would only reveal it if he was guaranteed that he would be tried in the United States and not Kenya. AUSA [redacted], with approval from Washington, created a second document of understanding (“the second DOU”) for Al-'Owhali’s signature: I ... have been fully advised of my rights, including my right to remain silent and my right not to answer questions without a lawyer present. As I have been previously told, I understand that anything I say or have said can be used against me in court in the United States. I also understand that if I choose not to answer questions my refusal to answer questions cannot be held against me in court. I further understand that if I choose to answer questions, I can always change my mind and decide not to answer any further questions. I have answered a number of questions of the American authorities and have provided truthful information after initially providing incorrect information. However, I have also indicated that there is additional information that I have which I stated I would share with the United States authorities upon my arriving in America and obtaining an attorney. I have also indicated that the information concerns a public safety issue. Because I would otherwise not make this disclosure before arriving in the United States and speaking to an attorney, but because American authorities do not wish to take the risk that the delay concerning the information I intend to impart later will cause loss of life, it is hereby agreed that I will tell the United States authorities about this information prior to returning to America. In turn, the American authorities agree not to use the fact that I disclosed this particular information against me as evidence in the Government’s case in chief if I should demand a trial of the charges that will be filed against me. I understand that the United States intends to pursue appropriate investigative leads based upon this information I am now agreeing to provide. I also understand that the United States is free to use any evidence gained in following up the investigative leads but will not advise any jury that hears my case of the fact that I revealed this particular information to the United States government, unless: (1) I testify falsely (or otherwise elicit false or misleading evidence or testimony) and revealing this fact will serve to correct false or misleading evidence; or (2) I request that the jury be advised of the fact that I disclosed this particular information and the Court overrules objection, if any, by the Government. The Government hereby agrees that if the Defendant is convicted, the Government will disclose the fact that I provided this information to the judge or jury determining or imposing sentence if requested to do so by the defendant. There is no promise that providing such information will affect my sentence. No other agreements or promises have been made other than as set forth in this document and the prior agreement dated August 22,1998. I have decided to sign this document because I have been advised by the undersigned that I am now scheduled to be removed to the United States within the next 24 hours, travel conditions permitting, and the undersigned is aware of no objections from either the United States or Kenya governments to such removal. 58. AUSA [redacted] read the second DOU to Al-‘Owhali through L.S. Fe-ghali, and Al-‘Owhali signed. Al-‘Owhali then proceeded to relate the subject information to his interrogators. At Al-‘Owhali’s request, this conversation took place without the Kenyan police. 59. On the morning of August 26, Al-‘Owhali was transported from Kenya to the United States. Once aboard the aircraft, Al-‘Owhali was advised of his conventional Miranda rights by S.A. Gaudin through L.S. Feghali. Al-'Owhali stated that he knew his rights, signed the advice of rights form, and invoked his right to appointed counsel. 60. He arrived in New York City at approximately 1:40 a.m. on August 27. He appeared before a federal magistrate judge in the Southern District of New York at about 10:00 a.m. that day. Conduct of the Intemgators 61. Al-‘Owhali was never in handcuffs during any of his interviews in Kenya. 62. All interviews were held in a library-like room fitted with tables and chairs. 63. Frequent breaks were taken to allow Al-‘Owhali to use the restroom, pray, and eat. Prayer breaks lasted for about 15 minutes. 64. Bottled water was provided upon request; food was often provided by the agents. 65. No threats were made by the U.S. agents, nor were any promises made. Conditions of Confinement 66. Al-'Owhali was held by Kenyan authorities in incommunicado detention from August 12 until August 26 — a total of fourteen nights. Kenyan law allows for 14 days of post-arrest detention for those suspected of a capital offense. 67. For the first two nights, he was held at the Jomo Kenyatta International Airport Police Station in Nairobi. The cell was 10-feet-by-ll-feet, had a 2-feet-by-5-feet window, and had a concrete bed. Al-'Owhali shared this cell with another individual. 68. On the third night he was moved to an 8-feet-by-8-feet concrete holding cell within the basement of CID headquarters, where he remained until his rendition to the United States on August 26. In this cell, Al-‘Owhali slept on some sort of thin mat and was provided with at least one blanket. 69. Medical attention was given to Al-‘Owhali as needed. Characteristics of the Accused 70. At the time of the interrogations, Al-‘Owhali had a basic understanding of spoken English. He would sometimes answer the simpler questions posed to him before the Arabic interpreter had even finished translating it. 71. To the U.S. officials who interrogated him, Al-‘Owhali appeared to be an intelligent, well-read individual. Al-‘Owhali has two years of university education and significant military experience. 72. During his interviews with American agents, he exhibited familiarity with a variety of political and world events. The Decision to Prosecute in the United States 73. The final decision that Al-Owhali would be prosecuted in the United States was made on or about an Au- ■ gust 25, 1998 telephone conversation between the U.S. Attorney for the Southern District of New York and the U.S. Attorney General. B. DEFENDANT K.K. MOHAMED Because K.K. Mohamed moves to suppress statements purely on the basis of an allegedly deficient advice of rights administered by U.S. officials, our findings of fact are limited to that narrow issue. We base our findings on the various affidavits and documentary evidence submitted in connection with the motion. The Arrest 74. On or about August 1999, S.A. Gaudin was in Cape Town, South Africa in furtherance of his investigation into the East Africa embassy bombings. 75. Christo Terblanche, Chief Immigration Officer (“CIO”) of the South African Department of Home Affairs (“SADHA”), met with S.A. Gaudin at SADHA’s Cape Town headquarters on August 30, 1999. There, he afforded S.A. Gaudin access to a file relating to South African asylum seekers. 76. In that file, S.A. Gaudin found an asylum application bearing the photograph of an individual he recognized as K.K. Mohamed. The name used in the application, however, was not that of K.K. Mohamed. S.A. Gaudin immediately informed CIO Terblanche of this discrepancy. 77. This lead to the arrest of K.K. Mohamed on October 5, 1999 — the date when he, as an asylum applicant, was required to be at the Cape Town Customs Building in order to extend the temporary immigration permit that permitted him to stay in South Africa. 78. Present for the arrest were CIO Ter-blanche, another SADHA immigration officer, and S.A. Gaudin. S.A. Gaudin, however, took no part in the arrest. 79. CIO Terblanche identified himself to K.K. Mohamed and apprised him of his rights under South African law. K.K. Mohamed was told that he was under arrest, that he was under no duty to say anything, that anything he said might be used in evidence against him, and that he was entitled to legal representation if he so wished. 80. Thereafter, K.K. Mohamed was taken to a SADHA holding facility at Cape Town International Airport. South African Interrogation 81. K.K. Mohamed was first interrogated by CIO Terblanche and Immigration Officer Gideon Christians. Nobody else was present. The topic of this interview concerned only K.K. Mohamed’s immigration status in South Africa. 82. Before any questioning began, Officer Christians again told K.K. Mohamed that he was entitled to a legal representative if he so wished. Interrogation by U.S. Law Enforcement 83. After the South African officers finished, FBI agents were allowed to speak with K.K. Mohamed. They did so on October 5 and 6. 84. Two FBI agents conducted these interrogations. Nobody else was present. 85. Immediately upon meeting K.K. Mohamed on October 5, the agents asked of his language abilities. K.K. Mohamed indicated that his English was sufficient to communicate; Swahili is his native language. 86. The agents presented K.K. Mohamed with English and Swahili versions of the following AOR: We are representatives of the United States Government. Under our laws, you have certain rights. Before we ask you any questions, we want to be sure that you understand those rights. You do not have to speak to us or answer any questions. Even if you have already spoken to the South African authorities, you do not have to speak to us now. If you do speak with us, anything that you say may be used against you in a court in the United States or elsewhere. In the United States, you would have the right to talk to & 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. If you decide to speak with us now, without a lawyer present, you will still have the right to stop answering questions at any time. You should also understand that if you decide not to speak with us, that fact cannot be used as evidence against you in a court in the United States. I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. 87. In all relevant respects, this was the same AOR that was used during U.S. questioning of Al-‘Owhali in Kenya. 88. After being read the English form and then reading the Swahili form on his own, K.K. Mohamed indicated that he understood his rights and that he was willing to speak with the agents. K.K. Mohamed signed both forms. III. Motions To Suppress Custodial Statements.- Fifth Amendment A. LEGAL STANDARD Our analysis of Defendants’ motions to suppress statements turns chiefly on the constitutional standard we adopt today, as a matter of first impression, concerning the admissibility of a defendant’s admissions at his criminal trial in the United States, where that defendant is a nonresident alien and his statements were the product of an interrogation conducted abroad by U.S. law enforcement representatives. We conclude that such a defendant, insofar as he is the present subject of a domestic criminal proceeding, is indeed protected by the privilege against self-incrimination guaranteed by the Fifth Amendment, notwithstanding the fact that his only connections to the United States are his alleged violations of U.S. law and his subsequent U.S. prosecution. Additionally, we hold that courts may and should apply the familiar warning/waiver framework set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to determine whether the government, in its case-in-chief, may introduce against such a defendant evidence of his custodial statements — even if that defendant’s interrogation by U.S. agents occurred wholly abroad and while he was in the physical custody of foreign authorities. 1. The Privilege Against Self-Incrimination and Non-Resident, Unconnected Aliens The predicate issue is as follows: Is the Government correct that a criminal defendant on trial in the United States does not enjoy the privilege against self-incrimination because he is a non-resident alien whose only connections to the United States are his alleged violations of U.S. law and his subsequent U.S. prosecution? We regard this narrow reading of the Constitution as being at odds with the text of the Fifth Amendment, overarching notions of fundamental fairness, relevant caselaw, and the policy goals supporting the privilege against self-incrimination. Therefore, we reject the Government’s interpretive contention and find that defendants in the position of Al-'Owhali and K.K. Mohamed may properly invoke the privilege against self-incrimination as a basis for suppressing custodial statements made to U.S. law enforcement representatives during overseas interrogation. (Cf United States v. Yunis, 859 F.2d 953, 970-971 (D.C.Cir.1988) (Mikva, J., concurring specially) (reaching same conclusion).) To begin, it bears noting that the Government incorrectly frames the legal inquiry as one dependent on the extraterritorial application of the Fifth Amendment. Whether or not Fifth Amendment rights reach out to protect individuals while they are situated outside the United States is beside the point. This is because any violation of the privilege against self-incrimination occurs, not at the moment law enforcement officials coerce statements through custodial interrogation, but when a defendant’s involuntary statements are actually used against him at an American criminal proceeding. (See United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (“Although conduct by law enforcement officials prior to trial may ultimately impair [the privilege against self-incrimination], a constitutional violation occurs only at trial.”) (citing Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)); Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir.1998) (“Even if it can be shown that a statement was obtained by coercion, there can be no Fifth Amendment violation until that statement is introduced against the defendant in a criminal proceeding.”).) Indeed, were the opposite the case — that is, if instead the Fifth Amendment injury resulted from the forcible extraction of a statement and not its later evidentiary use — then no statute compelling witness testimony under grants of immunity could withstand constitutional challenge. {See Mahoney v. Kesery, 976 F.2d 1054, 1061-62 (7th Cir.1992); see also Kastigar, 406 U.S. at 453, 92 S.Ct. 1653 (upholding federal witness immunity statute on grounds that, by barring prosecutor from use and derivative use of witness’s compelled testimony, statute satisfies “sole concern” of privilege against self-incrimination, i.e., “insurfing] that the testimony cannot lead to the infliction of criminal penalties on the witness”).) The violation of Defendants’ rights here, if any, is clearly prospective, and so the relevant question is the scope of the privilege against self-incrimination as to non-resident aliens presently inside the United States and subject to domestic criminal proceedings. We turn first to the expansive language used in the Fifth Amendment itself. Its criminal procedure provisions are that: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law (U.S. Constamend.V.) The crucial phrase is “no person” and it neither denotes nor connotes any limitation in scope, in marked contrast to the use of “the people” in most of the other Amendments contained within the Bill of Rights. (Compare id. with U.S. Const. amends. I, II, IV, IX, & X. See also Verdugo, 494 U.S. at 264-266, 110 S.Ct. 1056; Wang v. Reno, 81 F.3d 808, 817 (9th Cir.1996).) From the outset, then, these protections seemingly apply with equal vigor to all defendants facing criminal prosecution at the hands of the United States, and without apparent regard to citizenship or community connection. In the face of the Amendment’s inclusive text, however, the Government insists that “any assessment of the'extent to which constitutional rights may vest in a non-American in a given instance is significantly influenced by the degree to which he has sought to insert himself into the fabric of our society.” (Gov’t Dec. 11, 2000 Ltr. to the Court at 2.) Whatever the validity of this proposition in unrelated contexts (e.g., immigration), it is unsupportable in its intimation that criminal defendants on trial in a U.S. court should receive differing levels of Fifth Amendment procedural protection depending on their level of “insertion” into American society. Indeed, as the Government itself admits (id. at 3), the U.S. Supreme Court has already found at least one right contained in the Fifth Amendment to be free from such constriction. (See Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478) (1976)) (“There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.”) (citations omitted); see also Verdugo-Urquidez, 494 U.S. at 278, 110 S.Ct. 1056 (Kennedy, J., concurring) (commenting that, “[a]ll would agree ... that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant,” where the prosecuted defendant was in fact an unconnected, non-resident alien); Jean v. Nelson, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (“The right of an unadmitted alien to Fifth Amendment due process protections at trial is universally respected by the lower federal courts It is true that the Supreme Court has yet to rule affirmatively that the three remaining Fifth Amendment procedural guarantees — indictment by grand jury, bar on double jeopardy, and privilege against self-incrimination — apply to criminal defendants who are non-citizens. But we find that circumstance to be emblematic, not of doctrinal reticence, but of widespread acceptance that these strictures apply universally to any criminal prosecution brought by the United States within its own borders. (See, e.g., Verdugo-Urquidez, 494 U.S. at 278, 110 S.Ct. 1056 (Kennedy, J., concurring) (“I do not mean to imply, and the Court has not decided, that persons in the position of respondent [i.e., unconnected, non-resident aliens] have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution.’’); Jean, 472 U.S. 846, 105 S.Ct. at 3006-07 (“[W]hen an [excluda-ble] alien detained at the border is criminally prosecuted in this country, he must enjoy at trial all of the protections that the Constitution provides to criminal defendants.”).) And even in the context of this particular case, we note that the parties have proceeded as if Defendants indeed possessed these three rights: The Government has sought a grand jury indictment nine times; the Court has reviewed the charging instrument for multiplicitous counts; and the desire by some defendants not to testify at various hearings, whenever so expressed, has been scrupulously honored. In sum, we are not at all surprised that courts rarely, if ever, face the scenario wherein the United States, acting domestically, attempts to convict non-resident aliens without following the procedural framework of the Fifth Amendment. Of great significance is the Supreme Court’s own explicit treatment of the privilege against self-incrimination as a “fundamental trial right of criminal defendants.” (Verdugo-Urquidez, 494 U.S. at 264, 110 S.Ct. 1056 (citing Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)).) In doing so, that Court has heretofore heralded the constitutionalization of the right as “registering] an important advance in the development of our liberty — ‘one of the great landmarks in man’s struggle to make himself civilized.’ ” (Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (citing Griswold, The Fifth Amendment Today (1955) at 7); see also Withrow v. Williams, 507 U.S. 680, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993) (“The privilege embodies ‘principles of humanity and civil liberty, which had been secured in the mother country only after years of struggle ....’”) (quoting Bram v. United States, 168 U.S. 532, 544, 18 S.Ct. 183, 42 L.Ed. 568 (1897)).) Consider too this untrammeled praise: “[A]ny compulsory discovery by extorting the party’s oath ... to convict him of crime ... is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.” (Malloy, 378 U.S. 1, at 9 n. 7, 84 S.Ct. 1489 (quoting Boyd v. United States, 116 U.S. 616, 631-632, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).) It is quite understandable why the Supreme Court has urged, and we wholeheartedly agree, that “[t]his constitutional protection must not be interpreted in a hostile or niggardly spirit.” (Ullmann, 350 U.S. at 426, 76 S.Ct. 497.) Lastly, we believe that the policies un-dergirding the Fifth Amendment privilege against self-incrimination are no less relevant when the criminal defendant at issue is an unconnected, non-resident alien. Those “fundamental” and “noble” goals, as described by Justice Goldberg, are: [O]ur unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent. (U.S. v. Balsys, 524 U.S. 666, 690, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998) (quoting Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)).) While these policies may arguably lose them force when the fear of compelled self-incrimination points to a prospective foreign prosecution (see id. at 690-691, 118 S.Ct. 2218), when the defendant is, as here, prosecuted within the United States, before a United States court, for alleged violations of United States law, having been previously and thoroughly interrogated by U.S. law enforcement — then the Government’s use of a coerced confession against him would still have the debilitating effect of infecting our criminal justice system. Such a system will undoubtedly, “in the long run, be less reliable and more subject to abuses.” (Withrow, 507 U.S. at 692, 113 S.Ct. 1745; see also Miranda, 384 U.S. at 460, 86 S.Ct. 1602 (“[0]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.”).) We hold that Defendants Al-‘Owhali and K.K. Mohamed, as the present subjects of a U.S. criminal proceeding, are protected by the Fifth Amendment’s privilege against self-incrimination, despite their status as non-resident aliens whose only connections to this country are their alleged crimes and their domestic prosecution therefor. 2. Applying Miranda to the Overseas Interrogation by U.S. Law Enforcement of a Suspect in Foreign Custody Our next inquiry focuses on an issue imbued with significant consequence, not the least of which is its inevitable impact on U.S. law enforcement officials who, in furtherance of their duties and with increasing regularity, are dispatched and stationed beyond our national borders. Assume for purposes of this discussion these generalized facts: An individual held in the custody of foreign police is suspected of having violated both local and U.S. criminal law. As a matter of global comity, U.S. law enforcement representatives are permitted inside the foreign station-house to pose their own questions to the suspect. U.S. agents eventually succeed in extracting inculpatory statements, and the suspect is thereafter transported to the United States for prosecution, with the consent of foreign authorities. By what standards should a domestic court admit the above statements as governmental evidence at trial? We believe that a principled, but realistic application of Miranda’s familiar warning/waiver framework, in the absence of a constitutionally-adequate alternative, is both necessary and appropriate under the Fifth Amendment. Only by doing so can courts meaningfully safeguard from governmental incursion the privilege against self-incrimination afforded to all criminal defendants in this country- — wherever in the world they might initially be apprehended — while at the same time imposing manageable costs on the transnational investigatory capabilities of America’s law enforcement personnel. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court found custodial interrogation to be presumptively coercive. It mattered not that this police practice, in its modern American guise, is “psychologically rather than physically oriented.” (Id. at 448, 86 S.Ct. 1602.) Indeed, the technique’s core characteristics — above all, “to thrust [the suspect] into an unfamiliar atmosphere and run [him] through menacing ... procedures — made it “obvious” to the Court “that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner.” (Id. at 457, 86 S.Ct. 1602.) The Court thus concluded that “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” (Id. at 458, 86 S.Ct. 1602.) And so, for an accused’s own words to be used against him at trial, the prosecutor must first show that those admissions were preceded by an advice of rights to the accused, followed by a valid waiver of those rights. If, on the other hand, law enforcement failed to observe the Miranda safeguards, then the statement must be suppressed, thereby securing a defendant’s privilege against self-incrimination from government intrusion, as well as deterring future police misconduct. This tenet, rooted squarely in the Constitution, “has become embedded in routine police practice to the point where the warnings have become part of our national culture.” (Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405 (2000).) Contrary to the Government’s apocalyptic protestations, we are not dissuaded from applying Miranda to overseas interrogations conducted by U.S. law enforcement, even if the interrogational target is in the physical custody of foreign authorities. After all, the inherent coerciveness of that police technique is clearly no less troubling when carried out beyond our borders and under the aegis of a foreign stationhouse. It is, on the contrary, far more likely that a custodial interrogation held in such conditions will present greater threats of compulsion since all that happens to the accused cannot be controlled by the Americans. For instance, the laws of the host nation might permit lengthy incommunicado detention subsequent to arrest, thereby leaving the accused isolated and without assistance for a duration not seen today in America. Substandard detention conditions could further contribute to the toll. Worst yet, local authorities may privately engage in aggressive practices, both legal and illegal in their own nation, but certainly not tolerated within the United States. As such, by the time U.S. agents are finally on hand to ask questions of their own, strong countervailing forces will already have run head first into the free will of the accused. None of this is to say that American law enforcement representatives, who have behaved conscientiously and with great sensitivity, should always be responsible for the acts of a foreign sovereign. Rather, our point is — as is that of the Supreme Court in Miranda — that the inherent coercion associated with any custodial interrogation is a specter that haunts all confessions later gleaned therefrom, even apart from the added externalities of oppressive detention and improper police behavior. (See id. at 455-456, 86 S.Ct. 1602.) The great wisdom of Miranda — that American law enforcement must do what it can at the start of interrogation to dissipate the taint of compulsion — is equally prescient, if not more so, when U.S. agents are conducting custodial interrogations in foreign lands, where certain factors impinging on voluntariness will simply be out of their control. For purposes of safeguarding the Fifth Amendment privilege against self-incrimination, the Miranda warning/waiver framework still provides, even in the overseas context, a necessary and workable solution. We therefore hold that a defendant’s statements, if extracted by U.S. agents acting abroad, should be admitted as evidence at trial only if the Government demonstrates that the defendant was first advised of his rights and that he validly waived those rights. Suppression in the absence of either requirement will protect that defendant insofar as he is the present subject of a domestic criminal proceeding, while additionally deterring U.S. law enforcement from again committing similar omissions. (See Dickerson, 530 U.S. 428, 120 S.Ct. at 2336 (rejecting case-by-case inquiry into voluntariness in favor of constitutionally-based Miranda warning/waiver framework).) Our conclusion in this regard is further reinforced by the line of cases involving the suppression of statements elicited during overseas interrogation by foreign police. These decisions uniformly recognize an exception to the usual rule that the failure to provide Miranda warnings is not dispositive of the motion to suppress whenever questioning is conducted by foreign authorities. Referred to as the “joint venture” exception, it provides that the lack of Miranda warnings will still lead to suppression if U.S. law enforcement themselves actively participated in the questioning (see United States v. Heller, 625 F.2d 594, 599 (5th Cir.1980); Pfeifer v. United States Bureau of Prisons, 615 F.2d 873, 877 (9th Cir.), cert. denied, 447 U.S. 908, 100 S.Ct. 2993, 64 L.Ed.2d 858 (1980); United States v. Emery, 591 F.2d 1266, 1268 (9th Cir.1978); United States v. Hensel, 509 F.Supp. 1364, 1375 (D.Me.1981)), or if U.S. personnel, despite asking no questions directly, used the foreign officials as their interrogational agents in order to circumvent the requirements of Miranda (see United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983), abrogated on other grounds, National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994); Welch, 455 F.2d at 213; Heller, 625 F.2d at 599; Hensel, 509 F.Supp. at 1375; United States v. Molinu-Chacon, 627 F.Supp. 1253, 1262 (E.D.N.Y.1986), aff'd sub nom, United States v. DiTommaso, 817 F.2d 201 (2d Cir.1987)). Whatever the precise formulation, the existence of the exception itself is based on the assumption that Miranda must apply to any portion of an overseas interrogation that is, in fact or form, conducted by U.S. law enforcement. This is perfectly consistent with our holding today. It now remains to be decided what specific warnings should be administered by U.S. agents prior to their overseas interrogation .of a suspect not in U.S. custody. Clearly, he must be told that he has the right to remain silent, effective even if he has already spoken to the foreign authorities. He must also be told that anything he does say may be used against him in a court in the United States or elsewhere. This much is uncontroversial. But what about the right to the assistance and presence of counsel, either privately retained or publicly appointed? Unlike the previous two admonitions, this one may often be affected by the fact that the suspect is being interrogated overseas and that he is in the physical custody of a foreign nation. We agree with the Government that Miranda does not require law enforcement to promise that which they cannot guarantee or that which is in fact impossible to fulfill. No constitutional purpose is served by compelling law enforcement personnel to lie or mislead subjects of interrogation. Nor does Miranda mandate that U.S. agents compel a foreign sovereign to accept blind allegiance to American criminal -procedure, at least when U.S. involvement in the foreign investigation is limited to mutual cooperation. However, if the particular overseas context actually presents no obvious hurdle to the implementation of an accused’s right to the assistance and presence of counsel, due care should be taken not to foreclose an opportunity that in fact exists. To the maximum extent reasonably possible, efforts must be made to replicate what rights would be present if the interrogation were being conducted in America. We thus believe that the fair and correct approach under Miranda is for U.S. law enforcement simply to be clear and candid as to both the existence of the right to counsel and the possible impediments to its exercise. The goal is to convey to a suspect that, with respect to any questioning by U.S. agents, his ability to exercise his right to the presence and assistance of counsel — a right ordinarily unqualified— hinges on two external considerations arising from the fact of his foreign custody. First, since there exists no institutional mechanism for the international provision of an American court-appointed lawyer, the availability of public counsel overseas turns chiefly on foreign law. Second, foreign law may also ban all manner of defense counsel from even entering the foreign stationhouse, and such law necessarily trumps American procedure. Given these eventualities, U.S. law enforcement can only do the best they can to give full effect to a suspect’s right to the presence and assistance of counsel, while still respecting the ultimate authority of the foreign sovereign. And if an attorney, whether appointed or retained, is truly and absolutely unavailable, and that result remains unsatisfactory to the suspect, he should be told that he need not speak to the Americans so long as he is without legal representation. Moreover, even if the suspect opts to speak without a lawyer present, he should know that he still has the right to stop answering questions at any time. The foregoing reading of Miranda renders baseless the Government’s claims that a warning/waiver requirement will impose intolerable costs to both international investigatory cooperation and America’s own ability to deter transnational crime. As described above, if foreign law indeed bans all counsel from the stationhouse entirely, then we do not require U.S. law enforcement to violate such laws. Rather, only if the foreign authorities themselves permit the assistance and presence of counsel will that right be given effect during interrogation by U.S. agents. Even less persuasive is the alleged inability of the United States to counter transnational crime when constrained by Miranda overseas. We doubt that the simple recitation of an advice of rights to a criminal suspect questioned abroad, when such warnings are already required domestically, will in any way shift the tide in favor of global lawlessness. To the extent that a suspect’s Miranda rights allegedly impede foreign intelligence collection, we note that Miranda only prevents an unwarned or involuntary statement from being used as evidence in a domestic criminal trial; it does not mean that such statements are never to be elicited in the first place. In sum, we hold that statements obtained during overseas interrogation by U.S. law enforcement must meet the warning/waiver requirements of Miranda before they will be admitted into the Government’s case-in-chief at trial. That the defendant at the time of interrogation was in the physical custody of foreign authorities matters only insofar as the specific admonitions recited should conform to the local circumstances regarding access to counsel, both retained and appointed, while inside the foreign stationhouse. B. ANALYSIS 1. The Overseas FBI Advice of Rights Form U.S. law enforcement utilized the exact same AOR during the overseas interrogation of both Defendants whose motions to suppress are presently before the Court. In this subsection of the Opinion, we discuss only the facial sufficiency of the AOR as written. But because this AOR was also used in the interrogations of other defendants in the instant prosecution, and is apparently still being used by American law enforcement in its other international operations, the wider significance of our holding is heightened. We find, at least on the facts of this case, that the AOR is facially deficient in its failure to apprise Defendants accurately and fully of their right, under Miranda, to the assistance and presence of counsel if questioned by U.S. agents, even considering the fact that Defendants were in the custody of foreign authorities. Through the AOR, a suspect interrogated overseas by U.S. officials is initially told the following with respect to counsel: In 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. Since the suspect is obviously aware that he is not now “in the United States,” the logical conclusion for him to draw is that neither of the two previously enumerated rights are currently available to him. The clear, overriding message is that the right to counsel is instead geographically based. Appropriately enough, this reading is confirmed by the very next sentence: Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning. Nothing else in the AOR addresses a suspect’s right to the assistance and presence of counsel for purposes of custodial interrogation by U.S. personnel. Yet, standing alone, the three sentences above wrongly convey to a suspect that, due to his custodial situs outside the United States, he currently possesses no opportunity to avail himself of the services of an attorney before or during questioning by U.S. officials. The AOR, as is, prematurely forecloses the significant possibility that the foreign authorities themselves may, if asked, either supply counsel at public expense or permit retained counsel inside the stationhouse. Crucially, according to the provisions of foreign law received into evidence before the Court, at least one or both of these possibilities existed at the time of Defendants’ respective interrogations in South Africa and Kenya. In regard to South Africa, its Constitution guarantees that a suspect under interrogation has “the right to consult with an attorney of [his] choice and where [his] ability to procure the services of an attorney will lead to an injustice, the state will provide [him] with the services of an attorney.” (Gov’t Opp. to K.K. Mohamed’s Mot. Ex. C.) The Court’s understanding of the law as to Kenya, however, is murky at best. Kenya’s Constitution imparts: “Every person who is charged with a criminal offense shall be permitted to defend himself before the court in person or by a legal representative of his own choice.” (Kenya Const. § 77(2)(d).) Moreover, “nothing contained in [the aforementioned provision] shall be construed as entitling a person to legal representation at public expense.” (Id. § 77(2)(14).) Yet the Kenyan Criminal Procedure Code guarantees that “[a] person accused of an offense before a criminal court, or against whom proceedings are insti