Miranda, Schmiranda

They told me if I voted for McCain that alleged terrorists would have no rights.  And they were right!

WASHINGTON — The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.

I understand they may feel a need to cover their right flank, but how would such a law work?  I would have said that a suspect's Miranda rights exist whether or not they have been recited to him by the police; if a suspect keeps saying that he won't talk until he sees an attorney, could the police refuse him access to counsel by alleging terrorism?

At a guess, I suppose the revised law could state that as long as the final charges include something related to terrorism, statements made without benefit of counsel would be admissible.  I imagine the lefties who have been defending Team Obama's generous use of Miranda since Christmas will be up in arms. 

The proposal to ask Congress to loosen the Miranda rule comes against the backdrop of sharp criticism by Republicans who have argued that terrorism suspects — including United States citizens like Faisal Shahzad, the suspect in the Times Square case — should be imprisoned and interrogated as military detainees, rather than ordinary criminal defendants.

For months, the administration has defended the criminal justice system as strong enough to handle terrorism cases. Mr. Holder acknowledged the abrupt shift of tone, characterizing the administration’s stance as a “new priority” and “big news” in an appearance on “Meet the Press” on NBC.

“We’re now dealing with international terrorists,” he said, “and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face.”

Now we are dealing with international terrorists?  Not to be an I-told-you-so, but last Christmas the Underwear Bomber was a Nigerian trained in Yemen - why wasn't that international enough for Holder?  When did he finally figure out this is an international threat?

Holder has been operating under the public safety exception created by the 1984 New York v. Quarles decision, but they were pushing the envelope.

The Times ends with some slippery-slopers:

Still, Anthony D. Romero, executive director of the American Civil Liberties Union, said Congress had no authority to “chip away” at the Miranda ruling because it was based in the Constitution. He predicted that any effort to carve a broader exception would be vigorously contested.

“What’s troubling is that this is coming from the Obama administration,” he said. “The irony is that this administration supposedly stands for the rule of law and the restoration of America’s legal standing, and now they are trying to negotiate away fundamental Fifth Amendment rights.”

And Virginia E. Sloan, president of the bipartisan Constitution Project, said the existing public safety exception to Miranda seemed to be working, so there was no need to erode constitutional protections in ways that could later be expanded to other kinds of criminal suspects.

“It makes good political theater,” she said, “but we need to have a clear problem that we are addressing and a clear justification for any change. I haven’t seen that yet.”

Should we deny Miranda rights to people arrested for kidnapping or child molestation?  Why does Obama draw the line at terrorism - does the public really want to see the leader of a pedophile ring Mirandized?

From a different direction, Holder gave the Black Panthers a pass on their voter intimidation case in Philadelphia.  Why would righties want to give this politicized Attorney General more power and discretion?

Comments

[Or weasel word, whichever seems most apt.]

As c. has intimated, imminency will be a new catchword.
=========

[Clarice]

It will be a new catchword until sooner or later they decide that the uniform code of unicorn law is insufficient and they have to resort to treating this people as military detainees.
And--lucky Eric--Gitmo's still open.

[Clarice]

**these people**

[x1stclass]

Holder wants to sue over Arizona immigrant laws and his Kennedy-Lugar Youth Exchange and Study (YES) Program requires students to be 'from' Moslem countries. The xhange study is 22 here vs. 1 there. It's also being put out as an RFP, but I doubt YSA will bid. O is trying to get NGOs to buy in to this crap he had done after he put out billions that NGOs had to take or go broke.

The original bill was for study abroad (us) well financed without restraints. Now, it's changed to religious discrimination and soon Kerry will insist they be scientits.

[bgates]

The irony is that this administration supposedly stands for the rule of law and the restoration of America’s legal standing

It's strange that a guy like Romero wouldn't see a percentage in at least pretending to be nonpartisan. He may as well say, "The fundamental protections of the Fifth Amendment should be important to all Americans, including the fascist teabaggers who degraded America's legal standing during the Bush regime."

I imagine the lefties who have been defending Team Obama's generous use of Miranda since Christmas will be up in arms.

If they had something as dry as TM's wit in Nashville, the floods wouldn't have dominated the news for the past week.

[daddy]

Nice post TM,

I suspect you started putting it together in the 3rd when the Yanker's were down to the BoSox 6 zip, paused a bit in the 4th when they rallied 6-2, then got back to typing in the 6th (9-2), and posted when that sad mess of a contest was finally over with the Yank's last at bat, 9-3.

Didn't see the game myself, but anybody know if the Bronx Bomber's were using Pink bats today, like the Cubbies?

[daddy]

"If they had something as dry as TM's wit in Nashville, the floods wouldn't have dominated the news for the past week."

Line of the Post!

[nathan hale]

'uniform code of unicorn law' that's a keeper, then again this fellow helped render Elian back to Cuba, gave passes to FALN, and
super fraud Marc Rich. He's like Bizarro attorney general, from the 'bearded spock
universe'

[Clarice]

Thanks, narciso and I got the reference in this post. Niters. I have to get prepared to have my hair on fire gain on Monday.

[daddy]

"You have the right to remain silent, unless a Democrat is President."

"Anything you say can and will be used against you in a court of law unless a Democrat is President."

"You have the right to an attorney unless a Democrat is President."

"If you cannot afford an attorney, one will be appointed to you unless a Democrat is President."

"Do you understand these rights as they have been read to you? Good, If you promise to vote against the Constitution shredding Republicans we may go easy on you."

[x1ss]

Tantalus Field was an alien 'device.'

[BR]

So this is what terrorists have brought us, the point where any law-abiding American citizen can be denied their Constitutional rights by labelling them as terrorists, as in Napolitano's Homeland Security memo.

One World enslavement. What's next? The revolt of the Gladiators? If all the world's a stage, let's write some better plays.

[Cecil Turner]

So this is what terrorists have brought us . . .

Except the terrorists didn't do this to us, we did it to ourselves. First we recognized a new habeas right for unlawful combatants, and then jettisoned the pertinent precedent completely by finding military commissions unlawful.

That was followed by a deeply flawed law (the Military Commissions Act); which required a suspect be guilty (an "unlawful enemy combatant") before he could be tried. (And when the stupidity of the legal wording derailed the cases, the response by Specter suggested the snafu was intentional.) Then the law was modified by our community activist-in-chief and his allies to further water down the application.

In 2006, Obama was one of 34 senators -- 32 Democrats, one independent and one Republican -- who voted against the military commissions law. He called it a “flawed document” that betrayed American values.

Now that the traditional method for dealing with unlawful combatants isn't available, we "unexpectedly" find we need another. And, not surprisingly, it "betray[s] American values" far worse than its predecessor. Perhaps if we had fewer lefty lawyers in charge of warfighting . . .

[bunkerbuster]

Whatever ``the traditional method for dealing with unlawful combatants'' is doesn't really matter.
What matters is American values that say it is a human right to be treated fairly and, specifically, to receive a fair trial, to confront one's accusers, to have access to counsel and to have the reasons for you detention known.
The "unlawful combatant" paradigm applies to individuals who, in the midst of a conventional war between armies, engage in attacks outside those conventions. That scenario does not apply to the wars in Afghanistan or Iraq.
It is well documented that most of the detainees in Gitmo were taken in as a result of bounties offered to various factions in Afghanistan and, in many cases, there was zero evidence of their involvement in terror, other than the say-so of the bounty collector.
The main reason the Bush administration fought so long and hard against basic American values of fairness and justice is that they knew that any fair trial would immediately reveal the woeful incompetence and disregard that led to the apprehension of these hapless "terror" suspects in the first place.
American values are prevailing, but slowly. I say thank God for the lawyers, especially those brave U.S. military lawyers who risked so much to expose the Cheney-Bush totalitarian nightmare tactics that were mainly occasioned by the desire to prevent the public from finding out, to the extent possible, of how misinformed, misguided and incompetent they were in prosecuting terrorists.

[MarkO]

We need Orwell on this stuff.

[So far, it's about the only sensible thing Obama's done. But he still can't stop an attack, and then what?]

bb, how deluded can you get? Obama's administration is buying the whole hog from Bush's anti-terror campaign, but buying it in bits and pieces so fools like you won't notice.
=============

[Appalled]

I'm sure you all will agree that with ace prosecutors like Patrick Fitzgerald, and legal tacticians who have studied the tactics of Elliot Spitzer, nothing could go wrong with such an exception to the Fifth Amendment.

Always assume that the powers you give the government could be used against you, rather than the "other" that is bothering you this week. If you trust the Obama administration with this, I sure hope you aren't a part of the International Tea Party conspiracy who is buying some fertilizer at the Home Depot to green up the lawn.

[nathan hale]

Yes that was part of the 'public relations campaign, that the emirates provided through
the blue chip firms, that Deborah Burlingame
saw through. The fact that the Court chose not
to follow the law, specially when the Al Ajmi
case was staring them in the face, well that's manifest stupidity

[Rocco]

Holder gave the Black Panthers a pass on their voter intimidation case in Philadelphia

That might be because Obama owes the Black Panthers for his Harvard Education

However, one of Sutton's most notable moments is absent from the media hagiographies I have seen: he stated on television that he knew that an Islamic supremacist, Dr. Khalid al-Mansour, and advisor to a wealthy Saudi, had paid for Barack Obama's education at Harvard Law School.

Khalid al-Mansour was also very close to the Black Panthers

New evidence has emerged that Democratic presidential candidate Barack Obama was closely associated as early as age 25 to a key adviser to a Saudi billionaire who had mentored the founding members of the Black Panthers.

[Cecil Turner]

American values are prevailing, but slowly.

Which is why Gitmo is closed, detainees get read their rights, and the terror trials are going to be held in NYC, right?

There are ramifications when your world view is incoherent, as you will hopefully someday learn.

[Ranger]

BB, there is so much wrong with what you said, but I will address this one first:

The "unlawful combatant" paradigm applies to individuals who, in the midst of a conventional war between armies, engage in attacks outside those conventions.

No, the concept of "unlawful combatant" covers anyone who commits a war crime, regardless of if they are engaged in "conventional" or asymetric warfare.

We are at war with both al Qaeda and the Taliban right now. By your logic, they can do what ever the hell war crimes they please simply because they don't have organized field armies, and all we can do is charge them in civil court. That is simply not true either legally or under common sense.

They are not even entitled to EPW status since they fundimentally violate the law of armed conflict by the very nature of their operations: they fight out of uniform, and they deliberately target civilians. Therefore, being a member of al Qaeda or the Taliban is sufficient evidence of participation in war crimes to label the individual an illegal combatant.

You think they should get full civil rights because:

What matters is American values that say it is a human right to be treated fairly and, specifically, to receive a fair trial, to confront one's accusers, to have access to counsel and to have the reasons for you detention known.

News flash, those rules only apply to civil law. This is war, a totally different thing.

BTW, just how many Americans are you willing to see die as the cost of living up to your vision of "American values"?

[nathan hale]

Technically at one time, the Taliban were the sovereign govt of Afghanistan, at least as far as Pakistan, KSA the UAE were concerned

[Ranger]

Technically at one time, the Taliban were the sovereign govt of Afghanistan, at least as far as Pakistan, KSA the UAE were concerned

Posted by: nathan hale | May 10, 2010 at 09:31 AM

True, and when they are in the field, fighting as a field army, they get the standard protections of the law of armed conflict. But when they are setting off car bombs in public places, they are engaged in war crimes, and they give up that protection of law.

[Gentlemen preferred to fight by rules. How droll.]

Not quite law, R; they give up the protection of custom and treaty. A treaty made up as a gentlemen's agreement of dead, white, Europeans. Now, suddenly, the left is so hot on archaic conceits of the bourgeoisie?
===================

[This is one of the left's most blinding myopias.]

Or, to paraphrase, American values are not a suicide pact.
=====================

[Cecil Turner]

The only good thing to come out of those cases were two dissents by Clarence Thomas. In the first, he gives a concise summary of the wartime detention authority:

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision.

In the second, he provides a primer on the history of unlawful combatants. It's uniformly outstanding, but one of the best parts is:

For well over a century it has been established that “to unite with banditti, jayhawkers, guerillas, or any other unauthorized marauders is a high offence against the laws of war; the offence is complete when the band is organized or joined. The atrocities committed by such a band do not constitute the offence, but make the reasons, and sufficient reasons they are, why such banditti are denounced by the laws of war.”

The contrast with the idiocy of the majority (and views like bb's above) is stark.

[Clarice]

Thomas surely is underrated, isn't he? His dissent in Kelo was also memorable.

[nathan hale]

I know Cecil, those actual opinions. were put together with 'bailing wire and chewing gun'
utterly evading the question, with the real life consequences we see. Boumedienne, was the worst of them all, because it ignored
the results stemming from the previous two
outings

[Captain Hate]

Thomas surely is underrated, isn't he?

Mainly by ignorant boobs like Harry Reid.

[nathan hale]

He has a solid understanding of constitutional
principles, he has a talent for hiring able clerks like Ingraham and Yoo. That he is criticized by the likes of Biden,?? Reid, the
Searchlight undertaker, and our current dauphin in the Oval only is proof of their inadequacy

[ignatz]

Every time I get the urge to refute bunkerbuster's latest nincompoopery I just take a few seconds to reread it and the urge quickly passes, as it's invariably an ill-informed, passive-aggressive, self-refuting tautology.

[Richard Aubrey]

I don't see the problem.
Intel is frequently not incriminating, while incriminating information is infrequently useful as intel.
"I did it," tells you nothing about where you got the stuff.
Telling where you got the stuff doesn't help the prosecution if you've already said you did it.
And it wouldn't make sense to tell where you got the stuff if you deny you did it.

[Ranger]

I think it is high time that congress strip all federal judges and the justices of the SC of civil judicial immunity. Once these judges start facing personal financial jepardy for compelling the release of dangerous enemy combatants, maybe they will see a personal stake in this war too.

[Rocco]

A glimmer of hope from the American Islamic Forum for Democracy

Whether we declare it or not the United States is at war with the ideology of militant Islamism. Islamists are not afraid to call for the complete destruction of the principles that built our great country. The United States cannot afford to be timid in our response to their actions. Our citizens must abandon the paralyzing fears of political correctness and engage in long overdue genuine theo-political debates about the dangerous separatism of political Islam and its radicalizing effects.

[Walter]

Does anyone else find it disturbing that the ACLU representative does not understand the basis of the Miranda decision?

Seriously?

The right to an attorney is found (by most) in the Sixth amendment.

Sheesh!

Gratuitous Flogging: We have other solutions. Mr. Turner makes good points that deserve more attention. I have yet to see a serious discussion of difficulties applying the already existing border exception.

Even more gratutitous FITZ!: For those not familiar with Mr. Fitzgerald's full ouevre, I would like to point out that he has requested a life sentence for a person convicted of refusing to answer questions. Turns out that it is "obstruction of justice" once you refuse after being offered immunity*. The current guidelines allow sentences for obstruction to be the same as a sentence for the investigated crime.**

Color me libertarian, but I disagree with this approach.
____________________
*Even if it is only "use" immunity.

**Yes, even if no crime was actually committed.

[Captain Hate]

Does anyone else find it disturbing that the ACLU representative does not understand the basis of the Miranda decision?

No; I thought it was so obviously stupid that I figured there was more to it that I was missing.

[Walter]

I should also point out the tie between my two points is that under Supreme Court precedent, a violation of Miranda is equivalent to an offer of "use" immunity.

Prof. Kerr over at Volokh explains this better than I could.

Put them together and you have an instant solution to conviction problems:

1. If the suspect is a committed member of a group and does not talk, you put him in front of a grand jury, let him not talk, and jail him for life.

2. If the suspect is a less committed member and does talk, you (a) use physical evidence exposed by his answers to convict him or (b) round up his associates and use information gathered from them to convict.

3. If the suspect is innocent but scared of the bad guys and refuses to talk, you play God and either imprison him or let him go, depending on your mood. Recall that you can always change your mind and put him in gaol again if you want to--each fail-to-talk obstruction is a separate crime.

[jimmyk]

Walter, Miranda is not about the existence of the right to counsel. It's about the implementation in the form of mandating that those under arrest be explicitly informed of that right, and disallowing any evidence collected prior to or in the absence of that information. That's one of them there "penumbras" that the left is fond of reading between the lines.

[Walter]

JimmyK,

I got fooled by the "right to an attorney" language in the opinion.

Thanks for the correction.

[soccer dad]

I thought that Krauthammer made a pretty good case for the exception last week.

What creeped me out is what a different Charles said last week:

"Classify her as an enemy combatant and incarcerate her in a private facility."

[Cecil Turner]

I thought that Krauthammer made a pretty good case for the exception last week.

After pointing out the obvious:

America is the target of an ongoing jihadist campaign. The logical and serious way to defend ourselves is to place captured terrorists in military custody as unlawful enemy combatants.

The problem with expanding civil law enforcement procedures is that they tend to escape from the intended use. (Witness the Patriot Act procedures used for drug cases.) If you're okay with expanding police powers for civil cases, fine. If not, it's wise to keep the WoT stuff segregated, and that really means using military commissions.

[bunkerbuster]

``the urge quickly passes'' says Ignatz.
Thanks Iggy! I doubt anyone regrets your decision.

[boris]

"they tend to escape from the intended use"

Some of the carp they pull only makes sense if they want to treat everybody they possibly can as "their citizens". Thus depreciate the meaning of US cizenship and replace it with something that can apply to any person anywhere anytime. World guv anyone?

[boris]

"I doubt anyone regrets ..."

For the record ... bb does not speak for me ... ever.

Go stuff some more straw up your ...

[ignatz]

--Thanks Iggy! I doubt anyone regrets your decision.--

Ouch. That's a zinger.

[srp]

The parallelism between Cecil's thinking and mine is spooky. I'll read one of TM's post, have an immediate reaction, scroll down the comments and CT will have stated, better than I could, my exact thoughts.

So, yes. Many of us were arguing during the Bush phase of these disputes that a war paradigm would be more protective of our civil liberties than the "law-enforcement" model so beloved by the Democrat-aligned types.

The only problem I see is that we don't want the President to be able to simply designate some American as an illegal combatant and disappear him. For citizens or green card holders apprehended in the US I would want some procedural check on the CINC's authority to do that. Otherwise TM might end up in the new Illinois terrorist supermax when one of his posts hits too close to home.

[bunkerbuster]

What about the CIA? Are they "unlawful combatants?" And if they are, is anyone in the Pentagon thereby fair game?

[Clarice]

Ceci implanted a chip in my molar so he can read my thoughts, Get to a shrewd dentist immediately srp..(WINK)
If TM ends up in supermax rest assured narciso and I will lead a rescue team--well, maybe Boris and Cecil..or Rick and Jane.
Neve rmind the team, we'll bust him out of there.

[boris]

"we don't want the President to be able to simply designate some American as an illegal combatant "

The constitution appears to deliberately give that kind of authority to the president once hostilities are engaged.

Frankly the power of impeachment is an adequate check IMO, and prefereble to the kind of risks easy to imagine if a Justice of The Peace gets to micromanage what the elected prez can do to defend the country.

[boris]

"is anyone in the Pentagon thereby fair game?"

... that dummy needs more straw bb ... lots more ...

[bunkerbuster]

Boris, I don't think you understand what a strawman is. Look it up. you'll be surprised...

[boris]

Look in the mirror. You'll be disappointed.

[boris]

lol

[Cecil Turner]

Shucks folks, yer makin' me blush.

The only problem I see is that we don't want the President to be able to simply designate some American as an illegal combatant and disappear him.

The safeguard against that is the SCOTUS review which is virtually inevitable in a military commission case. The one perfect defense against trial by military commission is the one found in Milligan: that the defendant is not an enemy combatant. That argument hasn't been available to the latest round of miscreants for obvious reasons.

There is certainly a danger that military commissions will be misapplied, though little I think of them being misapplied in good faith. And in that case there would be a strong argument for impeachment. There have been no reported cases of such recently, nor do I think they're likely because they require willing cooperation of people following obviously unlawful orders (which in my experience is rare). The flip side is to provide law enforcement with a handy new tool, knowing they'd likely never see a terrorist, and expecting them not to stretch it to apply to the people they do see (e.g., drug dealers).