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WASHINGTON, May 21 (UPI) -- U.S. President Barack Obama said Thursday America needs to return to foundational values to fight terrorism after the Bush administration's "ad hoc" approach.

Shortly afterward, former Vice President Dick Cheney defended the Bush administration's terrorism policies, accusing critics of engaging in "feigned outrage based on a false narrative."

Obama said the United States can effectively fight al-Qaida and its affiliates, "but we must do so with an abiding confidence in the rule of law and due process, in checks and balances and accountability."

"We must never -- ever -- turn our back on its enduring principles for expedience sake," he said.

Of course that was then and this is now:

According to an FBI memo revealed by The Wall Street Journal on Wednesday, interrogations are now allowed to be carried out without suspects being notified of their rights in order to “collect valuable and timely intelligence."
*    *    *

President Barack Obama tried to alter the constitutionally mandated Miranda rights last year but was rebuffed by Congress. This time, Obama plans to effect the change administratively rather than through the legislative process in Congress.

The new policy is the latest in a series of controversial measures Obama has taken to limit the civil rights of American citizens and legal immigrants.

A brief review of Miranda rights from MirandaRights.Org:

Miranda Rights were created in 1966 as a result of the United States Supreme Court case of Miranda v. Arizona. The Miranda warning is intended to protect the suspect’s Fifth Amendment right to refuse to answer self-incriminating questions.

It is important to note that Miranda rights do not go into effect until after an arrest is made. The officer is free to ask questions before an arrest, but must inform the suspect that the questioning is voluntary and that he or she is free to leave at any time. The answers to these questions are admissible in court.

If the suspect is placed under arrest and not read Miranda rights, spontaneous or voluntary statements may be used in evidence in court. For example, if the suspect starts using excuses justifying why he or she committed a crime these statements can be used at trial.

Silence can be used against the suspect if it occurs before he or she is read the Miranda rights. For example, an innocent person would proclaim his or her evidence or try to give an alibi rather than staying quiet. The prosecution will try to use the suspect’s silence against him or her in court.

Following criticisms from Republican noise-makers on the DOJ's handling of terror cases, the Obama Administration has given the FBI more “leeway” to question terror suspects held in custody without first properly Mirandizing them.  At one point, the DOJ had considered broadening the laws regarding Mirandizing suspects but backed down after opposition from Democratic lawmakers.  However, there is a public safety exception which allows law enforcement to detain and question a terror suspect.  Since Miranda warnings are, in fact, enshrined in the Constitution, any attempts to broaden its application outside of the public safety exception would rightly be met with criticisms from all sectors. But an administrative tweak – broadening the public safe exception – can be achieved without having to go through all the hoops of a legal challenge.

According to Jonathan Turley in a recent article, Obama Orders Limits on Miranda Rights For Domestic Suspects:

The Administration is claiming a categorical right to invoke the public safety exception for any terror suspect — a facially absurd assertions since terror cases may or may not involve an imminent threat. Jose Padilla was claimed as being involved in an imminent threat of an nuclear attack. That claims was later withdrawn by the Bush Administration.
*     *     *

The public safety exception has always been highly case specific and this would be the ultimate example of the exception swallowing the rule. Of course, as constitutionally based, Obama cannot unilaterally change the meaning of this right by simple decree.
What is truly alarming is the failure of the Administration to tell anyone that (after being rebuffed by Congress) Obama simply went forward and ordered the change. The policy allows investigators to deny the protection of Miranda in “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.”

Obviously, that would allow investigators to claim the need for timely intelligence in any case. What investigator (or approving supervisor) is going to say that this case is not really a pressing matter of public safety? Under Obama’s approach, an investigator can interrogate a suspect first and then, after he has incriminated himself, tell him that he could have remain silent.

The disclosure of the policy further cements Obama’s legacy as a civil liberties nightmare. He is no longer viewed by civil libertarians as a disappointment, he is now viewed as a menace to fundamental rights.

Finally, for another take on this topic, I refer you to Glenn Greenwald's latest article, Miranda is Obama's latest victim in which he states:

Today, the Obama DOJ unveiled the latest -- and one of the most significant -- examples of its eagerness to assault the very legal values Obama vowed to protect. The Wall Street Journal reports that "new rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades." The only previous exception to the 45-year-old Miranda requirement that someone in custody be apprised of their rights occurred in 1984, when the Rehnquist-led right-wing faction of the Supreme Court allowed delay "only in cases of an imminent safety threat," but these new rules promulgated by the Obama DOJ "give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights."

For that reason, the WSJ is surely correct when it calls these new guidelines "one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S." Note that, in 7 years of prosecuting the War on Terror after 9/11, the Bush administration never tried to dilute Miranda guidelines (though doing so for them was irrelevant because they simply imprisoned even American citizens (such as Jose Padilla) without any charges or due process of any kind).

The Obama Administration has come a long way since May 2009 (the opening quote in this diary) to today.  Your thoughts, comments and analyses always appreciated.

Originally posted to angel d on Thu Mar 24, 2011 at 01:49 PM PDT.

Also republished by Frustrati, The Amateur Left, and The Democratic Wing of the Democratic Party.

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Comment Preferences

  •  Oy vey. (18+ / 0-)

    Not good not good not good. See also: bad.

    No matter how cynical you become, it's never enough to keep up. -- Lily Tomlin

    by Colorado is the Shiznit on Thu Mar 24, 2011 at 01:56:19 PM PDT

  •  y'know, if we're going to have (14+ / 0-)

    a president who sees fit to the ignore the Bill of Rights at will, I'd prefer it if he would just call a press conference, tear up the Constitution on live television, and then sneer "Constitution? We don't need no stinking Constitution! I'm the law now, beeeyotches! What are you pathetic little peons gonna do about that, huh?"

    Of course that is exactly what this president is doing, albeit in a much more polite and well-mannered fashion.

    "In America, the law is king." --Thomas Paine

    by limpidglass on Thu Mar 24, 2011 at 02:10:16 PM PDT

    •  Well such a press conference (16+ / 0-)

      might -- might -- deny some the ability to deny the disquieting fact that Turley speaks to:

      The disclosure of the policy further cements Obama’s legacy as a civil liberties nightmare. He is no longer viewed by civil libertarians as a disappointment, he is now viewed as a menace to fundamental rights.

      •  Turley's argument (1+ / 0-)
        Recommended by:

        has merit from a purely civil liberties viewpoint, it does not however have merit from a "this violates Miranda" viewpoint, because it absolutely does not, so long as it isn't used in court against an accused.

        However, there is no fundamental right not to be questioned by police. There is a fundamental right against self-incrimination, which Miranda protects.

        If you aren't tried based on your statements or the fruit of your statements then there is no self-incrimination and the Constitution is not violated.

        •  The right to speak should imply a right (2+ / 0-)
          Recommended by:
          angel d, neroden

          not to speak, regardless of whether one has been detained or arrested.  

          If the police suspect a crime has been committed, let them investigate and prove it.  The whole law enforcement system has gotten lazy and their excuse for relying on confessions is that they have too much to do -- partly because they spend so much time asking stupid questions and believing lies.

          by hannah on Thu Mar 24, 2011 at 04:24:31 PM PDT

          [ Parent ]

          •  sure there's a right not to speak (1+ / 0-)
            Recommended by:

            no one ever has to speak.

            Again, let's revisit what is actually the reality right now with this.

            Can't use these statements in court, the memo recognizes that you can't use these statements in court, so that leaves one of two reasons to do this:

            a. for funsies

            b. to use the information quickly in what is believed to be a sensitive situation.

            IF they ever decide to try and use these statements IN COURT against the declarant accuseds then sign me up to oppose this new policy in a heartbeat.

            Until then, no right is violated. The Constitution does not protect you against unwarned questioning, it protects you against self-incrimination, there is a difference.

            And asking questions of suspects is kinda investigating wouldn't you say?

            It's only when the answer are used against you at trial that your rights under Miranda spring forward.

          •  Confessions are incredibly unreliable (2+ / 0-)
            Recommended by:
            angel d, Vtdblue

            As far as I'm concerned, unless someone bragged to the national press, confessions should be automatically stricken from the record.  There's too long a history of coerced confessions.

            Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

            by neroden on Thu Mar 24, 2011 at 07:57:36 PM PDT

            [ Parent ]

    •  Did you read (0+ / 0-)

      the actual WSJ article that prompted this diary?

    •  careful there," two words, Predator Drone" (5+ / 0-)

      how about that joke by Obama ? A real due process type thing,... like ordering the death of anyone, anywhere, without any judicial process involved and no right to see evidence that it was warranted. (do I really need to post a link for these well known things?)

      without the ants the rainforest dies

      by aliasalias on Thu Mar 24, 2011 at 04:18:06 PM PDT

      [ Parent ]

    •  Bill of Rights is a misnomer. (0+ / 0-)

      What it is is a list of prohibitions which are only enforceable, in this case, by the tarnished fruit of interrogation not being able to be used to gain a conviction in a court of law.  If the person is never going to court, what's the point?

      The Miranda warning is an abomination.  It revises a specific prohibition to put the onus on the victim who fails to resist being tricked into talking.

      A simple directive to respect individual human rights in all circumstances would be more effective.  Prohibitions are always going to invite exceptions.

      by hannah on Thu Mar 24, 2011 at 04:20:40 PM PDT

      [ Parent ]

      •  your first half is correct (0+ / 0-)

        but Miranda is not an "abomination."

        It is the only way to keep the police from ignoring the law and the government from profiting from that. The fifth amendment prohibits involuntary self-incrimination.

        Self-incrimination requires by definition use at trial. Miranda says if it's unwarned then it is involuntary (basically, that's a bit simplified) in the case of custodial interrogations.

        A vague "respect human rights" is going to "invite exceptions."

        •  If we eliminated police and DA immunity (0+ / 0-)

          and we restored private prosecutions, this sort of abuse could be addressed best by prosecuting, convicting, and locking up the abusive police and DAs.

          Unfortunately we can't, as you see, so there's some serious problems with the system.

          Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

          by neroden on Thu Mar 24, 2011 at 07:59:22 PM PDT

          [ Parent ]

          •  No (0+ / 0-)

            and I don't recall there ever being "private prosecutions"

            As for police, you wouldn't have any. If I can't make decisions without fear of going to jail if I interpret the law incorrectly with  my at most bachelor's degree then odds are, I will pick another profession.

            •  When in doubt, police should call (0+ / 0-)

              for back-up.  Split-second decisions are rarely necessary and, when they are, it's unlikely blame will attach to the officer.
              Of course, the work of the agents of law enforcement has been unnecessarily complicated by the assertion that they are in the crime prevention business.  It's not possible to prevent crime.  At most, it is possible to prevent a repetition by the same individual by capturing culprits and locking them away.  The fact that most murders are not "solved" and the culprits aren't caught suggests that law enforcement is being distracted by "crime prevention" from catching actual perpetrators the first time around.  Then too, since death is considered more serious than torture and abuse, there's a whole lot of hurt that never gets stopped. Every child that runs away from an abusive home represents a failure of law enforcement.  But then, children, being the property of their parents, have no rights.  And it's always been the owners of property that the law protects.


              by hannah on Fri Mar 25, 2011 at 03:03:12 AM PDT

              [ Parent ]

              •  it doesn't have to be split second (0+ / 0-)

                lawyers and courts can't agree after decades of jurisprudence on unified laws dealing with constitutional rights.

                A myriad number of exceptions have been carved out by various courts over the years to varying degrees. Those cops can have all of the time in the world, but no one is going to be willing to role the dice and risk getting it wrong and going to jail because a group of judges ended up, in a 5-4 decision determining that you guessed wrong.

                So the person above who proposes cops go to jail for violating constitutional rights hasn't thought it through.

                •  Well, first of all, human rights are not (0+ / 0-)

                  Constitutional rights.  Which is why efforts to come to terms with them have been fraught with failure.
                  The only constitutional rights are those which deal with the participation of citizens in governing (to vote, to serve on juries, to draft legislation, to provide material support, to hold public office, to enforce the laws).  And even those aren't rights; they're obligations which, this being a free country, citizens are entitled not to carry out.  Which makes them freeloaders.  But, that's OK because we're a rich nation and can afford a certain percentage of freeloaders.  What we can't afford is letting the freeloaders give directions, especially since, for some reason, they want us to believe that freeloading is a virtue.


                  by hannah on Fri Mar 25, 2011 at 04:46:16 AM PDT

                  [ Parent ]

                  •  I am having a hard time following you (0+ / 0-)

                    1. there are a ton of constitutional rights, that deal with much more than just participation of citizens, they include the right to an attorney, against taking without compensation, against self-incrimination, unreasonable searches and seizures, in certain areas a right to privacy, a right to free expression and religion and assembly (with copious limitations), etc.

                    2. human rights are even more nebulous.

                    I don't get your attempting to introduce economic arguments into an issue dealing with self-incrimination, there isn't a lot of mutual relevance there.

        •  Not so. The positive instruction to (0+ / 0-)

          "respect human rights" is all-inclusive.  A negative statement, such as do not coerce, invites an argument as to whether or not a particular action is coercive or is perceived as coercive by the object/victim.

          If the response to the first is, "I don't know what that means," then the answer is don't do whatever you were thinking.  The positive direction requires that a person ask whether a particular act is respectful of human rights.  Is yelling?  Is pummeling? Is feeling up human cavities?  Is deprivation of food and water?  

          by hannah on Fri Mar 25, 2011 at 02:51:46 AM PDT

          [ Parent ]

  •  Given the ever-expanding definition of terrorism, (13+ / 0-)

    like this, Miranda may become a historical footnote.

    "The human eye is a wonderful device. With a little effort, it can fail to see even the most glaring injustice." Richard K. Morgan

    by sceptical observer on Thu Mar 24, 2011 at 02:20:23 PM PDT

  •  "Do as I say, not as I do..." (13+ / 0-)

    I work with B2B PAC, and all views and opinions in this account are my own.

    by slinkerwink on Thu Mar 24, 2011 at 02:22:29 PM PDT

  •  Good diary (15+ / 0-)

    about some important news. Should make the rec list, but it won't, maybe because we've become inured to news about attacks on the Bill of Rights, maybe because we never cared much about civil liberties that protect primarily "undesirables."  

  •  Excellent diary, sad day. n/t (9+ / 0-)

    ... so long as the profit motive is more important than the Hippocratic Oath, we will never get to where we as a nation must ultimately go...

    Follow me on twitter:

    by wyldraven on Thu Mar 24, 2011 at 02:23:26 PM PDT

  •  And people wonder (9+ / 0-)

    why I say I don't believe a word this president says.  I only go by what he does.  His words are meaningless.

    But the really tough thing to get past is the constitutional lawyer thing.

    WTF happened?  Seriously?  What happened to this man?  Did somebody pull a switcheroo like that movie?

  •  folks aren't going to be happy with me (3+ / 0-)
    Recommended by:
    elmo, hannah, HamdenRice

    on this but everyone does realize that Miranda does not protect anyone from unwarned interrogations, what Miranda does is prohibit (with a good number of exceptions) that evidence or fruit of that evidence from being used against an accused at a trial.

    For example, you have two suspects in a related issue, say a conspiracy. You can violate the "Miranda rights" of Suspect A, and use that evidence legally against Suspect B to gain a conviction, you just can't use it against Suspect A.

    Suspect A doesn't have any cause of action so long as it isn't used against him and Suspect B can't assert that Suspect A's "Miranda Rights" were violated.

    Strictly under Miranda, if they sought to question without a rights warning under what appears to be exigent circumstances to gather information, and didn't use that or anything learned from that against  that suspect/individual, they would not violate Miranda.

    One can question under OTHER areas whether they should be doing this of course, but not under Miranda.

    •  It's a slippery slope ... (6+ / 0-)

      when the definition of exigent circumstances or imminent public safety and immediate threats becomes expanded.  

      •  except (0+ / 0-)

        you forget that nothing in the pre-Miranda interview is admissible in court against the suspect. So where's the slippery slope?

        •  Military commissions. (2+ / 0-)
          Recommended by:
          angel d, Robobagpiper

          It looks to me like all of this will be "admissable" in the kangaroo courts which Bush and Obama use to "prosecute" people who can't be convicted in courts of justice.  Remember, these kangaroo courts are already allowing secret "evidence" and hearsay.

          Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

          by neroden on Thu Mar 24, 2011 at 08:01:08 PM PDT

          [ Parent ]

      •  as said below only if admissible in court (2+ / 0-)
        Recommended by:
        elmo, HamdenRice

        if not, then it isn't.

        Case law is clear that Miranda is a prophylactic right, it isn't a right in and of itself, it only springs to life if you try to use evidence against someone in court and then only if you use it against the person who's rights you violated.

        Otherwise, it simply isn't a right at all.

        There is no expansion here.

          •  how does that apply (0+ / 0-)

            to actual case law, or how a person will be prosecuted in court? Miranda still stands as it was decided: any interrogation that occurs before being mirandized is not admissible in court. What's been changed is the DOJ's procedure about when they're willing to forgo using a confession in court.

            •  Does the "fruit of the poisonous tree" doctrine (3+ / 0-)
              Recommended by:
              angel d, neroden, Robobagpiper

              come into in play here? Or is that exclusively the realm of illegal search?

              What's been changed is the DOJ's procedure about when they're willing to forgo using a confession in court.
              The "fruit of the poisonous tree" doctrine is an offspring of the Exclusionary Rule.

              The exclusionary rule mandates that evidence obtained from an illegal arrest, unreasonable search, or coercive interrogation must be excluded from trial.

              Under the fruit of the poisonous tree doctrine, evidence is also excluded from trial if it was gained through evidence uncovered in an illegal arrest, unreasonable search, or coercive interrogation.

              Like the exclusionary rule, the fruit of the poisonous tree doctrine was established primarily to deter law enforcement from violating rights against unreasonable searches and seizures.

              (bold mine)

              Also, a question? Have the laws pertaining to illegal search been relaxed? Somewhere in the back of my mind...I seem to remember hearing that.

              •  your own quote (2+ / 0-)
                Recommended by:
                Annalize5, Robobagpiper

                shows that interrogation falls under 'poisonous fruit' doctrine - it's about gathering evidence that's barred by by constitutional constraints.

                Depends on what you consider an illegal search. Some say that any search that meets criteria set up by the supremes is legal. Others have tighter requirements.

                •  The point I'm trying to make... (3+ / 0-)
                  Recommended by:
                  angel d, neroden, Robobagpiper
                  shows that interrogation falls under 'poisonous fruit' doctrine - it's about gathering evidence that's barred by by constitutional constraints.

                  is that beleive this DOJ (as did the previous one) will do anything, say anything, betray anyone to accomplish their ends.

                  While they may not make the grievous attempt in court to use a suspect's interrogation against him, there's always the the judges chambers, the back room, in which deals are made, cases are won or lost based on the best interests of the suspect...HA~!

                  Why do you think, Obama chose to make this "new rule"? Just curious as to your opinion.

                  •  It seems rather clear (0+ / 0-)

                    It couldn't get a constitutional exception (where they could use the testimony) and settled for setting out explicit situations where they felt it was worth possibly losing the court case to get the information the suspect has.

                    •  Again, military commissions come in here. (0+ / 0-)

                      This administration claims the right to lock people  up without trial forever, also, as a "preventative measure", without even judicial oversight.

                      So, y'know, they may not care if it's not admissable at trial, because they don't need no stinkin' trial.

                      There's a reason the continued attack on habeas corpus was the nastiest piece of work from the Obama administration.

                      Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

                      by neroden on Thu Mar 24, 2011 at 08:02:45 PM PDT

                      [ Parent ]

                  •  that's the counter side of (0+ / 0-)

                    "defendants getting off on technicalities" both of which happen extremely rarely.

              •  No (0+ / 0-)

                It has long been the case (since I was in law school, that's how long) that the exclusionary rule only applies to the person whose constitutional rights were violated. Evidence collected in an illegal search of one person can be used against some one else if their constitutional rights were not violated.

              •  yes (0+ / 0-)

                when you illegally obtain a confession, if you learn information/evidence based on that confession, that evidence is usually barred although there are several exceptions, for e.g. inevitable discovery.

          •  since we are simply repeating posts (1+ / 0-)
            Recommended by:

            I'll repeat mine:

            "Also unchanged is the fact that any statements suspects give during such pre-Miranda questioning wouldn't be admissible in court, the memo says."

            What freedom is being eroded again?

            Please point me to where there is an actual substantive change that will result in one instance of unwarned statements being used against someone at trial that isn't already an existing exception.

            Because I don't see one. I see an attempt to say when we want information really fast, we will not give Miranda rights EVEN as we explicitly recognize that we won't be able to use that evidence in court...which was already legal.

            •  How about this~? (1+ / 0-)
              Recommended by:
              angel d
              Because I don't see one. I see an attempt to say when we want information really fast, we will not give Miranda rights EVEN as we explicitly recognize that we won't be able to use that evidence in court...which was already legal.

              How about I no longer trust the DOJ to NOT "use that evidence in court".

              Color me jaded, but given how our "legal system" is now one of opportunity, not law, forgive me if your admonition above rings hollow. Sorry.

              I'll not list the litany of criminal injustices ignored or law overwritten if not canceled out the past ten years to now.

              •  Well that could happen at any time (1+ / 0-)
                Recommended by:

                but there are these things called judges and these things called appellate courts, and they seem to have done a fairly decent job of reigning in excesses in this area, see e.g. Hamdan et al.

                So, given the fairly settled state of the law in Miranda (as settled as any law this complex can be I suppose) I think yes you are making a I think this will be used improperly one day argument but not actually raising a fair argument for why this is actually a violation of the Constitution if they are going to do what they say they are going to do.

                If they aren't going to do what they say, then all bets are off anyways, and they don't even need to announce these policies, they can just do it.

                Like I said, IF they end up trying to use this in court, THEN I will be right there with you, until then, quite frankly they didn't even need to make this announcement IMO they could have just done it and been within the law.

                That they did take the trouble I think goes to a bit more transparency under this administration than the previous one.

                •  You forgot to mention (0+ / 0-)

                  defense attorneys (appointed and paid for with public funds when the defendant is indigent).  The first motion a defense attorney would file is a motion to supress any evidence collected pre-Miranda.

                  •  and judges who (0+ / 0-)

                    would overturn convictions as well.

                    •  You're all forgetting "military commissions" (0+ / 0-)

                      and furthermore OBama's willingness to keep people imprisoned indefinitely without any sort of trial, even a "military commission".

                      To me, it is clear that these new powers are simply designed to extract false confessions, which will assist the public relations effort when imprisoning people without trial forever.

                      Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

                      by neroden on Thu Mar 24, 2011 at 08:05:34 PM PDT

                      [ Parent ]

                      •  You keep forgetting (0+ / 0-)

                        that there are different rules for suspects apprehended in the U.S., and those picked up by the military outside the U.S. You may not like those distinctions, but they existed long before the Obama administration.

                •  Jesus. (1+ / 0-)
                  Recommended by:
                  angel d
                  If they aren't going to do what they say, then all bets are off anyways, and they don't even need to announce these policies, they can just do it.

                  Tell me the truth. Can you say with a straight face you beleive "they" are not going to do the exact opposite of what they say they are going to do?

                  In your heart of hearts you can say w/o reservation you trust this DOJ?

                  •  I don't trust anything (2+ / 0-)
                    Recommended by:
                    elmo, Annalize5

                    "without reservation" but yes I am not an uber cynic, I do believe that this DOJ will do what they say they will do for several reasons:

                    a. they know the law, they aren't idiots
                    b. there are defense counsel who will object
                    c. the law is fairly settled/clear
                    d. they know b and c

                    So yes, I do, it has nothing to do with your implication that I am naive, it's based on a rational belief that the DOJ has no wish to waste their time, fight battles they will lose, and knows the law.

                    Besides all of that Quarles is still good law and thus the public safety exception still is good law and in the rare incidents where they can invoke, they can do it without this announcement.

                    So your invocations of the son of God notwithstanding...

                    •  Maybe if I talk to you long enough... (1+ / 0-)
                      Recommended by:
                      angel d

                      your optimism will rub off on me, because I want to beleive, I really do.

                      But when I consider the highest court in the land made corporations "people", (the better to buy the country in broad daylight), forgive me if I remain wary.

                      •  it's not "optimism" (1+ / 0-)
                        Recommended by:

                        It has nothing to do with believing in some inherent goodness which I have no idea what is in the heart of anyone other than myself and a few close people, and even then...

                        It has to do with these are smart people who are not in this to waste their time, and no I don't think everyone in government are somehow evil minions looking for all possible ways to screw everyone.

                        The law is fairly clear, the rulings are fairly consistent, they explicitly recognize it, and even if they later change their minds (and I would call them out if they do) there are multiple layers of protection that would all have to fail.

                        I'm simply going to save my outrage for when the Constitution is actually violated.

                        •  Thank you for your point of view. n/t (0+ / 0-)
                        •  OK, what about the habeas corpus violations (0+ / 0-)

                          And what about the violations of the right to a "speedy and public" trial, and the right to confront the evidence against you?

                          These have all been violated already with the people locked up forever without trial, or who are supposed to be subject to kangaroo-court "military commissions" where hearsay and secret evidence can be used.

                          To me, this attack on Miranda rights appears to be an attempt to extract false confessions which will not be used in court, but will be used either in "military commissions" or as public justification for locking people up without trial.

                          Look at it in that context and think hard.

                          Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

                          by neroden on Thu Mar 24, 2011 at 08:07:39 PM PDT

                          [ Parent ]

                          •  let me make sure I understand (0+ / 0-)

                            I present valid arguments in this area, and your response is, but yeah what about other areas?

                            If they are used in military commissions, then those will also be challenged and we will see, if your pov were correct, we'd never have had hamdan, or boumidienne, or other cases like that decided against the government.

            •  What freedoms are being eroded? (0+ / 0-)

              The freedoms to keep your mouth shut and to have a lawyer present, based on your knowing that you have those rights?

              No lawyer here, but that's what I always thought.  It sounds like you're saying I'm mistaken. Do we have the right to remain silent or don't we? Do we have a right to have our attorney present or don't we? Funny that the warning should clearly state that we do if we don't.

              Or maybe you have to be a lawyer to think about rights only in terms of what the government is allowed to do after they violate them.

              Religion is what keeps the poor from murdering the rich. -- Napoleon Bonaparte

              by denise b on Fri Mar 25, 2011 at 04:50:07 PM PDT

              [ Parent ]

    •  and (0+ / 0-)

      somehow this diarist forgot to include this bit of information in his/her diary:

      (from the WSJ article)

      Also unchanged is the fact that any statements suspects give during such pre-Miranda questioning wouldn't be admissible in court, the memo says.

      Honestly, the first link in the diary is not exactly a credible source.

      The Miranda rights is a legal document that constitutionally obligate US law enforcement officers to read out to all criminal suspects before subjecting them to any interrogations.

      Sounds like the person who wrote this got all of their knowledge on the subject from a TV cop show.

      •  Only once the interviewee (1+ / 0-)
        Recommended by:

        becomes a "suspect."

        If he's invited to talk, come to a police station, etc., the interviewers will attempt to make him feel protected by Miranda, but he won't  be.

        This is where the term, "person of interest" came from.

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

        by john07801 on Thu Mar 24, 2011 at 03:23:07 PM PDT

        [ Parent ]

        •  Again (1+ / 0-)
          Recommended by:

          courts will still apply Miranda, and there is no "tricked him" exception to giving Miranda rights in custody, in custody being the key.

          It was already the case that the cops don't have to read Miranda rights to someone who is not in custody so a person of interest not in custody has never required the reading of Miranda rights.

    •  Will you expand, please? (2+ / 0-)
      Recommended by:
      angel d, neroden
      One can question under OTHER areas whether they should be doing this of course, but not under Miranda.
      •  well I admittedly (0+ / 0-)

        was trying to be accurate by suggesting I wasn't attempting to say there were no other possible arguments against this.

        I honestly don't know what they would be off the top of my hand from a constitutional viewpoint, although one can always argue from a libertarian viewpoint I suppose that it's just a good idea to always give Miranda rights warnings even if you aren't planning on using the evidence you gain against the declarant in court.

        But constitutionally speaking, I don't see off the top of my head why questioning which is never going to be used against the declarant in court requires any kind of warnings in civilian law (military law actually requires warnings in a much broader context but that has to do with the belief that most accuseds in the military feel an obligation to answer questions truthfully from their superiors, even if it incriminates them).

  •  not like this should come as a surprise (6+ / 0-)

    before the election the then senator showed he had no respect for civil rights by lying in his promise to fight for disclosure in warrant-less wiretaps.

  •  Press TV? (0+ / 0-)

    Seriously? Your first link?

  •  And most Americans--except those (1+ / 0-)
    Recommended by:

    on the far left--could care less of the rights of suspected terrorists. Only some people on boards like this will care. They don't care if some suspected Al Qaeda or other terrorist suspect has his "rights" violated. That's the brutal truth.

    •  What's that old saying ... (6+ / 0-)

      First they came for the Jews, but I wasn't Jewish so I said nothing ....

      and so on.

      •  But most people can't fathom that that (3+ / 0-)
        Recommended by:
        wyldraven, Annalize5, neroden

        would happen to them. They can't make the logical jump from terrorists having their due process rights violated to it happening to them. To most people they think they "have nothing to hide". So some suspected Islamic terrorist getting abused doesn't matter to them.

        •  Key word "suspected". (2+ / 0-)
          Recommended by:
          angel d, neroden

          The FBI is exceedingly "creative" in conjuring up "terrorists". The fact is they are heavily involved in entrapment, creating terrorists out of whole cloth to keep the fear factory supplied.

          I could dig up lots more. Here's an example:

          "The Newberg Four"

      •  oh, good grief (0+ / 0-)

        or more appropriately, good Godwin.

        Please, explain to me how allowing pre-Miranda questioning without in any way using the statements against the suspect in his trial is in any way comparable to anything done to the Jewish people by anyone anywhere ever.

        •  Oh, please look up 1920s-30s Germany & Italy (0+ / 0-)

          Most people haven't researched it at all, clearly you haven't either.

          Would you be more comfortable if I compared the situation to King Henry VIII?  We are still early days in the establishment of totalitarianism in the US, and I hope we can nip it in the bud, but people really have to recognize what it means that the governments is kidnapping and locking people up without trial forever, already.

          Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

          by neroden on Thu Mar 24, 2011 at 08:11:11 PM PDT

          [ Parent ]

          •  You obviously have no understanding (0+ / 0-)

            of what is actually going on, which is no surprise given the vague and inflammatory information from this diary. This is a better explanation:


            It has been the law in this country for 30 years that Miranda warnings can be delayed in case of public danger. I'd say someone on an airplane trying to blow it up is a case of public danger.

            If you want to "nip this in the bud" you're thirty years too late already.

    •  If you're right about this... (6+ / 0-)

      it speaks badly about most Americans, not about the dwindling cadre of "far-leftists" who continue to believe that human right are rights for all humans.

      When you triangulate everything, you can't even roll downhill...

      by PhilJD on Thu Mar 24, 2011 at 03:35:53 PM PDT

      [ Parent ]

      •  Most people aren't going to be sympathetic (1+ / 0-)
        Recommended by:

        to suspected terrorists having their due process rights violated. Given that these people want to inflict significant harm to innocent people, do you think the average person is really going to care that much that that suspect's "rights" are being abused?

        •  they miss the entire point... (5+ / 0-)

          when you start taking rights away from "suspected terrorists" you are taking rights away from completely innocent people.

          •  Exactly. Everyone is a "suspected" terrorist. (0+ / 0-)

            I suspect that elmo is a terrorist.  But what matters is who the government decides to pretend is a terrorist.

            Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

            by neroden on Thu Mar 24, 2011 at 08:12:02 PM PDT

            [ Parent ]

        •  No constitutional rights are violated (0+ / 0-)

          unless the pre-Miranda statements will be used against the accused at trial...which they won't be.

          •  So you trust these yahoos too? (1+ / 0-)
            Recommended by:
            angel d
            unless the pre-Miranda statements will be used against the accused at trial...which they won't be.
            •  No, trust has nothing to do with it (1+ / 0-)
              Recommended by:

              I am a lawyer, though, and have some familiarity with the way the judicial system works.

              The system has its checks and balances. The check on prosecutorial misconduct is that the defense lawyer files a motion to supress all evidence collected pre-Miranda, and the judge grants the motion and excludes the evidence from trial.

              •  You imagine that the judicial system will be used (0+ / 0-)

                Consider that these non-Mirandized confessions are probably intended for the so-called "military comissions" or for locking people up without any trial at all.

                Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

                by neroden on Thu Mar 24, 2011 at 08:12:47 PM PDT

                [ Parent ]

                •  Cite me one example (0+ / 0-)

                  from the Obama administration of any of those hypotheticals you propose. Remember, we're talking about FBI investigations which are domestic, inside the U.S.

                  The Bush administration only attempted to do that to one person arrested in the U.S., Jose Padilla, and even the Bush administration eventually gave up on the attempt and handed Padilla over to the civilian courts.

    •  Just noting the contrast, (2+ / 0-)
      Recommended by:
      Situational Lefty, neroden

      or is there a suggestion somewhere in there that we ought not discuss this, given public opinion?

  •  Unbelievable that anyone is trying to spin, (6+ / 0-)

    let alone somehow justify, one more erosion of American freedom.

    There are some issues where there is no "nuance," and a knee-jerk response is the only rational one.

    When you triangulate everything, you can't even roll downhill...

    by PhilJD on Thu Mar 24, 2011 at 03:28:25 PM PDT

    •  from the WSJ article (1+ / 0-)
      Recommended by:

      "Also unchanged is the fact that any statements suspects give during such pre-Miranda questioning wouldn't be admissible in court, the memo says."

      What freedom is being eroded again?

      •  It seems to me it would make (1+ / 0-)
        Recommended by:

        prosecution even harder: since any evidence gathered because of that interrogation would be fruit of the poison tree. Interrogation without Miranda is a two edged sword.

        •  absolutely true (0+ / 0-)

          it can be very difficult to wall off what you learned, you even have to bring in completely new prosecutors who can't speak or talk to the former folks on the case, a chinese wall is the lingo used.

          I've seen it before and while I was on the defense side and reaped the benefits of it, it was heck for the government side to basically start from scratch.

          •  Not intended for actual prosecution in real courts (0+ / 0-)

            I'm startled that you haven't connected this with the "military commissions" and imprisonments without trial currently being used by the government in "terror" cases.  

            (At this point, I think the definition of a "terrorism" case is the government is trying to terrorize us.)

            Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

            by neroden on Thu Mar 24, 2011 at 08:14:18 PM PDT

            [ Parent ]

        •  Against the suspect, yes (0+ / 0-)

          Against third parties, no. That's always been the case, at least since I was in law school back in the 80's.

          The exclusionary rule only applies to evidence collected against the person whose constitutional rights were violated, not third persons.

        •  Then, please why in heaven's name... (1+ / 0-)
          Recommended by:
          angel d

          is this story such a big deal?

          For me it's a big deal because I have long since abandoned hope for one single honest broker at the table.

          So tell me, if you can what you think this President was doing/thinking?

  •  Miranda vs Arizona (1966)PBS (3+ / 0-)
    Recommended by:
    angel d, wyldraven, Situational Lefty


    PBS Landmark Supreme Court Cases

    In Miranda v. Arizona (1966), the Supreme Court ruled that detained criminal suspects, prior to police questioning, must be informed of their constitutional right to an attorney and against self-incrimination.

    The case began with the 1963 arrest of Phoenix resident Ernesto Miranda, who was charged with rape, kidnapping, and robbery. Miranda was not informed of his rights prior to the police interrogation. During the two-hour interrogation, Miranda allegedly confessed to committing the crimes, which the police apparently recorded.

    Miranda, who had not finished ninth grade and had a history of mental instability, had no counsel present. At trial, the prosecution's case consisted solely of his confession. Miranda was convicted of both rape and kidnapping and sentenced to 20 to 30 years in prison.


    He appealed to the Arizona Supreme Court, claiming that the police had unconstitutionally obtained his confession. The court disagreed, however, and upheld the conviction. Miranda appealed to the U.S. Supreme Court, which reviewed the case in 1966.

    The Supreme Court, in a 5-4 decision written by Chief Justice Earl Warren, ruled that the prosecution could not introduce Miranda's confession as evidence in a criminal trial because the police had failed to first inform Miranda of his right to an attorney and against self-incrimination.

    The police duty to give these warnings is compelled by the Constitution's Fifth Amendment, which gives a criminal suspect the right to refuse "to be a witness against himself," and Sixth Amendment, which guarantees criminal defendants the right to an attorney.

    The Court maintained that the defendant's right against self-incrimination has long been part of Anglo-American law as a means to equalize the vulnerability inherent in being detained. Such a position, unchecked, can often lead to government abuse.

    For example, the Court cited the continued high incidence of police violence designed to compel confessions from a suspect. This and other forms of intimidation, maintained the Court, deprive criminal suspects of their basic liberties and can lead to false confessions.

    The defendant's right to an attorney is an equally fundamental right, because the presence of an attorney in interrogations, according to Chief Justice Warren, enables "the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogations process."

    and so:

    The policy allows investigators to deny the protection of Miranda in “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.”

    Who will determine what is an "exceptional case", one that is  a clear threat to public safety?

    •  You do understand, don't you, (0+ / 0-)

      that no one is "doing away" with Miranda warnings? The only difference is that in certain cases Miranda warnings will be delayed some period which has already been legal since the 80's in cases of imminent public danger.

      An example is the underwear bomber guy. He was questioned for about 3 hours before being Mirandized. Are you outraged by that?

      Republicans were. They were outraged that he was Mirandized at all.

      •  No. I'm not "outraged"... (1+ / 0-)
        Recommended by:

        I'm afraid.

        I'm afraid this country is falling apart at the seams. I don't understand why those responsible for "The Sting" have not been prosecuted.

        I don't understand why nobody listened to Brooksley Born years ago. Derivatives. (The beginning of the descent into what we now have as the status quo.)

        I don't understand why we can legally continue to bring "Shock and Awe" down upon children.

        So that, anytime I hear things like "Miranda is being dispensed with", I become more afraid. I'm tired of being afraid. We finally got habeas corpus back. The very idea that it could have been "suspended"  still makes me shudder.

        I'm tried of the class war that is legally being perperuated against the working class and the poor.

        It scares me that statistics like these have become the norm and acceptable in this country:

        Hunger and Food Insecurity in the United States

        One of the most disturbing and extraordinary aspects of life in this very wealthy country is the persistence of hunger. The U.S. Department of Agriculture (USDA) reported that in 2008:

            * Of the 49.1 million people living in food insecure households (up from 36.2 million in 2007), 32.4 million are adults (14.4 percent of all adults) and 16.7 million are children (22.5 percent of all children).

        * 17.3 million people lived in households that were considered to have "very low food security," a USDA term (previously denominated "food insecure with hunger") that means one or more people in the household were hungry over the course of the year because of the inability to afford enough food. This was up from 11.9 million in 2007 and 8.5 million in 2000.

        * Very low food security had been getting worse even before the recession. The number of people in this category in 2008 is more than double the number in 2000.

        * Black (25.7 percent) and Hispanic (26.9 percent) households experienced food insecurity at far higher rates than the national average.

        I could go on.

        Thanks for your comment.

        •  not everything is connected (0+ / 0-)

          it simply isn't. Flaws, errors, and injustice in one sector is not always connected to other sectors of government.

          •  While technically true, right now (0+ / 0-)

            everything is connected.  There is a deliberate pattern to the injustices we're seeing.  It's attributable to no more than three main groups (Koch Bros. corporatist types, MIC/Cheney totalitarian types, and end-times fundie types), and they're known to be cooperating.

            Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

            by neroden on Thu Mar 24, 2011 at 08:16:40 PM PDT

            [ Parent ]

        •  You hear "Miranda is being (0+ / 0-)

          dispensed with" but it's not. Unless you think it was dispensed with 30 years ago.

          •  No, it's not being dispensed with... (0+ / 0-)

            but, it is being "tinkered with".

            From the Wall Street Journal
            Rights Are Curtailed for Terror Suspects
            March 24, 2011

            The Justice Department believes it has the authority to tinker with Miranda procedures. Making the change administratively rather than through legislation in Congress, however, presents legal risks.

            "I don't think the administration can accomplish what I think needs to be done by policy guidance alone," said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. "It may not withstand the scrutiny of the courts in the absence of legislation."

            New York Republican Peter King, chairman of the House homeland-security committee, is among the lawmakers who welcomed Mr. Holder's call to change Miranda.
            At a hearing last year, Mr. King said, "It's important that we ensure that the reforms do go forward and that at the very least the attorney general consults with everyone in the intelligence community before any Miranda warning is given."

            The administration suggested legislation last year to alter Miranda but was rebuffed by Congress, administration officials said.

            Its proposals faltered due to objections from Democrats, who had no appetite for tinkering with Supreme Court precedent, and Republicans who aired civil-liberties concerns or rejected civilian custody for terror suspects.

            I do not, cannot, understand the why of the administration's insistence on making such a change to Miranda outside the parameters of the legislative process.

            Further, from King's quote above it appears ("...and that at the very least the attorney general consults with everyone in the intelligence community before any Miranda warning is given.") the interrogator will need to be in touch with CIA ("intelligence community") to gain approval before the subject is finally Mirandized? Brings back memories, yes? Bush's DOJ needed to obtain a court order to wiretap, only they didn't.

            Can you give me your best possible guess as to why this is even being brought by the administration?

  •  Honestly, where's the beef? (0+ / 0-)

    Do you realize what you're all upset about is, at most, questioning a terror suspect for several hours (less than 24, certainly) before reading them their Miranda rights, and not a single statement made by the accused during that interrrogation will be used against him or her in a criminal trial?

    •  They'll be used in other ways. (1+ / 0-)
      Recommended by:
      denise b

      Think about it.  We still have people imprisoned indefinitely without trial, and we still have an attempt to set up kangaroo courts.

      Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

      by neroden on Thu Mar 24, 2011 at 08:25:37 PM PDT

      [ Parent ]

      •  Yes, they'll be used in other ways (0+ / 0-)

        like trying to stop other terrorist acts. You think about it. The underwear bomber guy. Wouldn't you like investigators to try to question him pre-Miranda to find out if he may know about other bombers out on planes right then?

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