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I just read a article on huffpo, just posted 20 minutes ago. I did not watch Gibb's press briefing and am listening to it now.

Are Obama administration lawyers working on bending the intent of the law?

Are your rights as a citizen to a Miranda warning a matter of interpretation by a president, or to be legislated away?

Gibbs stated today that the president is still committed to the law establishing Miranda rights. BUT the president wants protections of Miranda, as well as flexibility.

What is flexible about this law? When a president decides?

All too much reminding us of the Bush regime as their total disregard of of our constitution. Their issuing of memos to circumvent our laws. Will the White House have memos provided by the DOJ to prevent Miranda warnings, when they deem necessary?

The case Dickerson v. U.S., already limits Congress's ability to alter the content and power of the Miranda warning (which is a constitutional right, the court determined).

Gibbs said, "the president is "interested" in "limited flexibility" with respect to laws governing how to question a suspected terrorist. This means granting interrogators, under controlled and moderated environments, the right to interrogate a suspect before reading him his or her Miranda rights.

"The president believes that the law that we have in place is an important one," he said at one point. "The president is committed to it, ensuring that we have protections as well as flexibility," he said at another.

----

Nevertheless, Gibbs did not suggest that legislative alterations to Miranda and the public safety exception are out of bounds -- though he never explicitly or implicitly indicated that it would be needed either.

"Obviously," he said, "any change that would take place would have to be done legislatively."

http://www.huffingtonpost.com/...

Originally posted to allenjo on Tue May 11, 2010 at 02:15 PM PDT.

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Comment Preferences

  •  Tip Jar (11+ / 0-)

    Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

    by allenjo on Tue May 11, 2010 at 02:15:10 PM PDT

  •  Wow... (4+ / 0-)
    Recommended by:
    neroden, john07801, TomP, allenjo

    completely sickening.....

  •  I remember when to origional supreme court (4+ / 0-)
    Recommended by:
    Marie, SallyCat, TomP, allenjo

    ruling came down. I thought that the whole thing had been established as a constitutional principle. I don't see how the president as the constitutional authority to meddle with that.

    •  Miranda's not being altered (3+ / 0-)
      Recommended by:
      marina, lgmcp, My Stupid Opinion

      What's happening more likely is that the timing will be changed of the public safety exception found in Quarles.

      Right now, there's 50 minutes before Miranda MUST be read to suspects.  What I'm thinking they're contemplating (and this is based on what I've read) is that they want to extend that time period in terrorism cases.  I don't know if they can do that, but since Quarles is based on case law...they might be able to for clarification purposes.  The law isn't very clear one way or another with regards to terrorism.

      •  I can't see any reason why (7+ / 0-)

        simply defining someone as a "terrorist" at the point of interrogation should have any bearing on the law. The constitution does not recognize "terrorism" as a separate entity.

        •  It's not that per se (3+ / 0-)
          Recommended by:
          cato, marina, My Stupid Opinion

          What's going on and maybe I should have been more clear as that the DOJ would want more time before Miranda must be read.  I don't know if they would limit it to terrorism cases.  They would probably limit it to the exception.  

          For some background, Quarles is a case about an individual who ran from the police but was eventually caught by them, but they couldn't locate his weapon.  Realizing that they were in an area where school children may be able to access it, police didn't mirandize him as the fear of finding the weapon was of greater import.  The court ruled that there is a public safety exception for these circumstances.

          What DOJ's problem is, it's not that there's a gun but that there could be other perpetrators with other bombs or other information that they don't want to mirandize a suspect who may shut up after his rights are read.  

          It's a debate we should have whether it should be extended or not, but in my view it's a reasonable application of Quarles.

          •  Neither the president nor Congress (4+ / 0-)

            has any power to alter Miranda.  This is all grandstanding on the administration's part.  

            Or at least I hope it is.  If a constitutional law professor like Obama doesn't understand that he can't use the ordinary political process to change the dictates of the Constitution, then we're in even more trouble than I thought.  

            Maladie d'Amour, Où l'on meurt d'Aimer, Seul et sans Amour, Sid'abandonné

            by FogCityJohn on Tue May 11, 2010 at 03:01:21 PM PDT

            [ Parent ]

            •  They're not changing MIRANDA (2+ / 0-)
              Recommended by:
              cato, My Stupid Opinion

              They're contemplating whether they can change the public safety exception.  Courts have already struck down attempts to defeat Miranda.  That's not what's happening.

            •  I don't think they would seek to (2+ / 0-)
              Recommended by:
              My Stupid Opinion, calchala

              create a law that would alter Miranda (as you pointed out the court has found Miranda to be a Constitutional rule, and hence Congress may not legislate around it).

              It seems like what they're talking about is creating a law or at least guidelines for law enforcement to be able to question someone absent Miranda warnings under the public safety exception.

              I find this entirely reasonable when considering the stakes. When someone (like the man who planted the car bomb in Times Square) is apprehended pursuant to a plot to commit mass murder, where there might be other bombs planted, the government should be free to question that individual for a reasonable amount of time without Miranda warnings.

              Remember that the whole issue here is whether those un-mirandized statements will be admissible at trial or will be subject to the exclusionary rule. I see this change as a very small price to pay in the interests of public safety given the extremely narrow circumstances in which it would actually be employed.

              •  Why? (3+ / 0-)
                Recommended by:
                Meteor Blades, Richard Lyon, allenjo

                Miranda warnings take very little time.  The entire text can easily be read in under 30 seconds.  

                The problem with the justification is that there is no case under which such circumstances cannot be claimed to exist.  Law enforcement officials can always assert that they subjectively feared the suspect had a weapon, had planted bombs, was accompanied by co-conspirators, or whatever.  The only limits to this exception would be those imposed by the imaginations of police and prosecutors.  Trust me, the circumstances in which this will be employed will be anything but "narrow."

                Maladie d'Amour, Où l'on meurt d'Aimer, Seul et sans Amour, Sid'abandonné

                by FogCityJohn on Tue May 11, 2010 at 04:47:30 PM PDT

                [ Parent ]

                •  A former prosecutor commented the other (0+ / 0-)

                  day here that miranda warnings do, in fact, alter people to the detriment of investigation.  So that they take very little time isn't the issue.

                  •  "Alter people"? (1+ / 0-)
                    Recommended by:
                    allenjo

                    And how does that happen, exactly?  Sure, respecting a person's constitutional rights may make a police officer's or prosecutor's job more difficult, but protecting rights is what the Constitution is for.

                    Maladie d'Amour, Où l'on meurt d'Aimer, Seul et sans Amour, Sid'abandonné

                    by FogCityJohn on Tue May 11, 2010 at 05:19:32 PM PDT

                    [ Parent ]

                    •  Makes 'em clam up faster. (0+ / 0-)

                      It's been a long day.

                      I just wanted to note that the issue isn't the time it takes to read a miranda warning.  

                      •  In other words (0+ / 0-)

                        The danger of informing someone of his constitutional rights is that he might choose to exercise them?  I think we need to remember what the purpose of the Constitution is.

                        Maladie d'Amour, Où l'on meurt d'Aimer, Seul et sans Amour, Sid'abandonné

                        by FogCityJohn on Tue May 11, 2010 at 05:31:29 PM PDT

                        [ Parent ]

                        •  No, the question is how long we can defer (0+ / 0-)

                          the miranda warning under the public safety exception.  Since case law is so unclear, it makes sense to find out how far we can.  

                          ie, we want as much time to question people that have just planted bombs for as long as we can pre-miranda while maintaining fidelity to the constitution.  

                    •  Or so we have been lead to believe..... (0+ / 0-)

                      protecting rights is what the Constitution is for.

                      Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

                      by allenjo on Tue May 11, 2010 at 05:35:03 PM PDT

                      [ Parent ]

                •  The problem with your (0+ / 0-)

                  argument is that the public safety exception already exists and is already construed very narrowly. There must be particular exigencies present (like an unsecured gun cast off by a fleeing suspect) to satisfy the public safety exception. I don't understand why people are only now up in arms about this exception, since it has been in existence since 1984 (NY v. Quarles).

                  If you have a problem with the public safety exception generally, as it exists now, then fine.

                  But I see no rational explanation for why it should not apply to suspects who authorities believe were involved in plots to commit mass murder of innocent civilians.

                  It would not be unconstitutional to question such suspects without Miranda warnings, because the Supreme Court has ruled that there is an exception to the rule where there are exigent circumstances in which the public is in danger.

                  I guess my larger point is that what is being proposed here is not an expansion of governmental power, just an acknowledgment that the government may start using an already existing exception to the miranda requirement.

                  I think the possibility that there was more than one car bomb about to detonate more than satisfies this requirement (it is, I would argue, an exponentially larger threat to public safety than an unsecured handgun).

                  The only limits to this exception would be those imposed by the imaginations of police and prosecutors.

                  The limits imposed by this rule would not be up to the police and prosecutors, it would be up to the courts, and they will continue to construe the exception narrowly.

                •  And that is the sad sad truth, FogCity (0+ / 0-)

                  Law enforcement officials can always assert that they subjectively feared the suspect had a weapon, had planted bombs, was accompanied by co-conspirators, or whatever.  The only limits to this exception would be those imposed by the imaginations of police and prosecutors.  Trust me, the circumstances in which this will be employed will be anything but "narrow."

                  Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

                  by allenjo on Tue May 11, 2010 at 05:33:41 PM PDT

                  [ Parent ]

              •  very small price to pay in the interests of publi (0+ / 0-)

                There are no small prices when we have civil liberties taken away, as it strikes at the soul of our nation.

                Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

                by allenjo on Tue May 11, 2010 at 05:30:25 PM PDT

                [ Parent ]

            •  What they can do, though, is pass a law (0+ / 0-)

              purporting to allow X time prior to the warning in Y circumstances, and then see if it passes muster.  Since caselaw is mushy, it'd be a reasonable way of testing the limits of the public safety exception.

      •  This "50 minute" standard (6+ / 0-)

        is not part of Miranda.  It is only the period of time the FBI failed to provide the Xmas Day bomber with his Miranda warning.  As he hasn't been convicted (or case appealed), this "buffer zone" of time is strictly conjecture.

        In the Miranda decision, Chief Justice Warren explained (according to Wiki),

        ...no confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless a suspect had been made aware of his rights and the suspect had then waived them.

        You don't get the first hour free.

        I used to be Snow White...but I drifted.

        by john07801 on Tue May 11, 2010 at 02:53:52 PM PDT

        [ Parent ]

        •  The supreme court eventually imposed (5+ / 0-)

          restrictions of several of Bush's cowboy gestures. However, it took several years for the cases to get there. In the mean time Bush had made much political hay off of it. I expect the Obama administration may be taking a similar perspective. It's not every day that they catch themselves a real live terrorist. It could be a long time after an announcement before the new policy gets used and a long time after that before it gets to SCOTUS.

        •  Under Quarles, (2+ / 0-)
          Recommended by:
          My Stupid Opinion, calchala

          You CAN get question time before the warning is read.  Some of the questions regarding this are how much time, and what kinds of questions can be asked.

          "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White

          by zenbassoon on Tue May 11, 2010 at 03:04:47 PM PDT

          [ Parent ]

          •  But that's specifically (3+ / 0-)
            Recommended by:
            Richard Lyon, Predictor, allenjo

            an emergent situation which frees police from other requirements, also.

            This argument is awfully similar to the one advanced to justify torture.  Remember?  You've just captured the guy who you know placed the bomb that's going to go off in an hour and will kill thousands.  And he won't talk...

            What keeps getting lost in the Miranda discussions today is that the police are well-versed in tricking defendants into confessing.  Miranda is a specific effort to protect the clueless and out-strategized into violating their own rights, unknowingly.  It's a defense against an over-zealous government.  

            I don't see a gray area.  One of the dissents to Quarles was, "so how long does it take to Mirandize?"

            I used to be Snow White...but I drifted.

            by john07801 on Tue May 11, 2010 at 03:16:39 PM PDT

            [ Parent ]

    •  Nor do I, unless we are going (5+ / 0-)
      Recommended by:
      Marie, SallyCat, marina, neroden, blueoasis

      back to the Bush regime style of governing, Richard.

      The case Dickerson v. U.S., already limits Congress's ability to alter the content and power of the Miranda warning (which is a constitutional right, the court determined).

      Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

      by allenjo on Tue May 11, 2010 at 02:39:20 PM PDT

      [ Parent ]

  •  With All Due Respect (5+ / 0-)

    This isn't really news. Obama, and I like the guy most of the time, has limited rights of "terrorists" or those said to be "terrorist" at levels beyond even Bush.

    "In a time of universal deceit, telling the truth is a revolutionary act." - George Orwell

    by webranding on Tue May 11, 2010 at 02:21:32 PM PDT

  •  I'm getting a headache! (2+ / 0-)
    Recommended by:
    burrow owl, webranding

    I thought nothing was more tedious and mind-numbing than the carefully-crafted, legal analysis of Constitutional Law scholars who live and breathe nuance with every carefully-chosen word...  until I came across the parallel "analysis" of those who are anything but Constitutional Law scholars.

    "We will extend a hand if you are willing to unclench your fist" --- President Barack Obama, 1-20-2009.

    by tier1express on Tue May 11, 2010 at 02:25:46 PM PDT

    •  Tell me how Congress (3+ / 0-)
      Recommended by:
      Marie, blueoasis, john07801

      passes a statute that changes the constitutional anaysis of teh s.ct.?   They could take away jurisidction to hear cases (a really bad idea) or they could pass an amendment to the constitution.

      Pooties and Woozles unite; you have nothing to lose but your leashes!

      by TomP on Tue May 11, 2010 at 02:40:52 PM PDT

      [ Parent ]

      •  I'm actually not expressing a view either way (0+ / 0-)

        on whether or how the administraion can change Miranda. Just expressing my awe at the way many indescriminately use/misuse and mix up discreet legal/Constitutional constructs and principles on their way to setting their hair on fire.

        As the saying goes... a little knowledge is a dangerous thing.

        "We will extend a hand if you are willing to unclench your fist" --- President Barack Obama, 1-20-2009.

        by tier1express on Tue May 11, 2010 at 02:51:03 PM PDT

        [ Parent ]

        •  Methinks (1+ / 0-)
          Recommended by:
          Predictor

          you're being confused by that other set of constitutional "scholars," the self-absorbed politicians.

          I used to be Snow White...but I drifted.

          by john07801 on Tue May 11, 2010 at 03:23:33 PM PDT

          [ Parent ]

          •  Unfortunately... they have PROVEN (2+ / 0-)
            Recommended by:
            blueoasis, allenjo

            that they don't know jacksh*t either! Especially Yalie Joseph Lieberman. Scratch that actually, that bastard does understand the Constitution, he just doesn't mind shredding it to smithereens if it suits his chickenhawk agenda.

            "We will extend a hand if you are willing to unclench your fist" --- President Barack Obama, 1-20-2009.

            by tier1express on Tue May 11, 2010 at 03:37:42 PM PDT

            [ Parent ]

            •  It's like the (1+ / 0-)
              Recommended by:
              Predictor

              flag-burning amendment.  

              The politicians pull it out every election year knowing that it's meaningless in the face of free speech.  But it plays well to the folks at home and gets all the canes a-tappin' down at the VFW hall.  The politicians (R's!) can then decry the liberal SCOTUS, etc., for dismissing it.  

              And the voters cast their ballots for the incumbents because they're dumber than eggplant.

              I used to be Snow White...but I drifted.

              by john07801 on Tue May 11, 2010 at 03:53:30 PM PDT

              [ Parent ]

      •  We don't know what the scope of the public (0+ / 0-)

        exception is.  Given that, it's not so crazy to work w/ Congress to craft a law on the subject.  If SCOTUS wants to clarify, they can. (which is the inverse of a common legal maxim that I'm sure you're familiar with: a court makes a ruling on statutory construction, and then notes that if the Congress wants to clarify, they can)

  •  Gotta remember (4+ / 0-)
    Recommended by:
    john07801, TomP, nickrud, allenjo

    You have to remember that any restriction of Miranda rights has to be:

    1. Applied to a specific case,
    1. Then go before a series of courts ending at teh Supreme Court.

    If the USSC doesn't l ike what youve doe, the accused person is freed.

    Corporations are people; money is speech.
    1984 - George Orwell

    by Frank Palmer on Tue May 11, 2010 at 02:27:59 PM PDT

    •  No that's not correct. (2+ / 0-)
      Recommended by:
      Meteor Blades, burrow owl

      If a suspect has made an inculpatory statement, and the police procedures in securing the statement did not satisfy the Miranda requirements, then those statements are excluded under the 'exclusionary rule.'

      The statements will merely be suppressed, but you will not be set free. The state can even use those suppressed statements to impeach your testimony at trial.

  •  From what I understand there are exceptions (3+ / 0-)
    Recommended by:
    burrow owl, neroden, allenjo

    A suspect can be questioned about accomplices, potential immediate threats and such - before his Miranda rights are read. Don't know if there's a formal process of qualification and review. Yes, it's disturbing because of the potential misuse.

    We don't inherit the world from the past. We borrow it from the future.

    by minorityusa on Tue May 11, 2010 at 02:32:04 PM PDT

    •  There are tons of subrules (2+ / 0-)
      Recommended by:
      burrow owl, Predictor

      that have been decided as other cases have wended their way to SCOTUS.

      A true emergency can delay Miranda.  But my cynical mind tells me that a canny cop is going to manufacture one of these any time he can.

      And questioning is questioning.  If a cop asks about accomplices and the suspect gives an answer implicating himself, that admission can be successfully excluded.

      Once a suspect declines to talk, he can't be questioned again...unless he waives his rights, which he can do implicitly by initiating the conversation.  (A written waiver is far less likely to be successfully challenged).

      Additional attempts can be made only if his rights are "scrupulously honored," meaning that the interrogation ended immediately, there was no further questioning for a significant period, different personnel were used for subsequent interrogation and the suspect is re-Mirandized.

      And, if he requests an attorney, there can be no further questioning at all, even after meeting with his attorney.

      And on and on and on...

      I used to be Snow White...but I drifted.

      by john07801 on Tue May 11, 2010 at 03:46:28 PM PDT

      [ Parent ]

  •  Axelrod says willing to talk to congress (4+ / 0-)
    Recommended by:
    SallyCat, slatsg, blueoasis, TomP

    Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

    by allenjo on Tue May 11, 2010 at 02:36:26 PM PDT

  •  I don't understand why this admin wants to be (7+ / 0-)

    compared to the previous one in terms of taking away constitutional rights? The President knows constitutional law and should know better unless he wants to weaken the constitution even further.

    Time to run errands...the past few days watching Holder and the rest of this has given me massive headaches.

    The only thing you get from sitting on the fence is splinters in your ass. My Granddaddy!

    by SallyCat on Tue May 11, 2010 at 02:37:54 PM PDT

  •  I Smell Smoke. (4+ / 0-)
    Recommended by:
    Marie, SallyCat, blueoasis, allenjo

    Is something burning?

    ::
    The Pluto Chronicles. You want reality? You can't handle reality!

    by Pluto on Tue May 11, 2010 at 02:40:05 PM PDT

    •  What was left in tatters after Bush (4+ / 0-)
      Recommended by:
      Marie, SallyCat, Pluto, blueoasis

      Well, It is those little pieces left, that are going up in smoke, Pluto.

      That we are even having this conversation, post Bush......

      Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

      by allenjo on Tue May 11, 2010 at 02:43:05 PM PDT

      [ Parent ]

    •  Let me Amend this Comment: (1+ / 0-)
      Recommended by:
      allenjo

      As I have repeatedly said, American foreign policy has resulted in putting America under continuous blood-revenge attack for decades to come. We are making enemies faster than we can kill them.

      There is only one way to protect Americans, and that is by locking the country down and severly curtailing all civil rights.

      Those are the facts you must live with.

      Or, you can leave.

      ::
      The Pluto Chronicles. You want reality? You can't handle reality!

      by Pluto on Tue May 11, 2010 at 02:44:06 PM PDT

      [ Parent ]

      •  LockDown (3+ / 0-)
        Recommended by:
        SallyCat, Pluto, blueoasis

        We are making enemies faster than we can kill them.
        Yes, we are. We just can't kill them fast enough even with our "totally awesome" army and our predator drones.

        There is only one way to protect Americans, and that is by locking the country down and severly curtailing all civil rights.

        We have to extend that wall from the southern borders, to the northern borders and seal off our coasts, for sure!

        Those are the facts you must live with.

        Or, you can leave.

        If I continue to live in a Bush like country, under the age of Obama, then I will have to leave again.

        Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

        by allenjo on Tue May 11, 2010 at 02:50:03 PM PDT

        [ Parent ]

  •  Arguement is not public safety, but war.... (4+ / 0-)
    Recommended by:
    Meteor Blades, Marie, SallyCat, allenjo

    To the degree that the argument prevails that we are in a "war on terror" then any agent of this war is under the aegis of the "commander in chief" which gives him the authority to protect the United States, which includes not only elimination of a right to a lawyer, but protections against search and seizure, and due process.

    If we were in a real war, if we had been invaded, or were at risk of actually being conquered, (see England, Poland and France 1939-45) then few would deny a president this power, in fact, we would demand that he use it.

    But, the War on Terror will never end.  There will always be people who share some of the connections, and even values of those who are our enemies in this war, or defined as such.

    This is the crux of the problem. Such a war, a permanant war as described by George Orwell in his Oceana of "1984" becomes the source of power for a dictator.

    That was my long answer.   The short one is: No president has the power to diminish Miranda rights in a non combat setting

    •  becomes the source of power for a dictator... (1+ / 0-)
      Recommended by:
      blueoasis

      How are we coming along with that?

      And what stance does Kagan take on all that executive power?

      Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

      by allenjo on Tue May 11, 2010 at 02:51:31 PM PDT

      [ Parent ]

  •  Working on a way to codify the questions (5+ / 0-)
    Recommended by:
    otto, marina, john07801, allenjo, Susan G in MN

    in the Public Safety Exception could be a way to prevent abuses from happening in the future.  Right now, there is no "set" time a suspect may be questioned.  There are only vague examples at best of the kinds of questions that can apply and that would be admissible.  It's conceivable that someone could arrest a suspect, and under the exception as it is now, could hold him indefinitely without granting him counsel.  And stuff like that.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White

    by zenbassoon on Tue May 11, 2010 at 03:02:29 PM PDT

    •  Regardless of the answer to the question (1+ / 0-)
      Recommended by:
      john07801

      This is a good point.

      I am surprised that this sort of question isn't brought up more frequently when dealing with law enforcement  

      When a basic aspect of the legal process has such undefined application, doesn't it cause problems all the time?

      "I had surgery,and I can't lift luggage. That's why I hired him."

      by otto on Tue May 11, 2010 at 03:38:26 PM PDT

      [ Parent ]

    •  stuff like that. (0+ / 0-)

      We have had too much of "stuff like that."

      It's conceivable that someone could arrest a suspect, and under the exception as it is now, could hold him indefinitely without granting him counsel.  And stuff like that.

      Anne Frank, "How wonderful it is that nobody need wait a single moment before starting to change the world."

      by allenjo on Tue May 11, 2010 at 05:46:46 PM PDT

      [ Parent ]

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