Obama plan would delay probable cause hearings to allow uninterrupted interrogations

[G_j]

http://rawstory.com/rs/2010/0515/obama-plans-uninterrupted-interrogations/


Obama plan would delay probable cause hearings to allow uninterrupted interrogations

By Stephen C. Webster
Saturday, May 15th, 2010 -- 12:26 pm

In a move that's being heavily criticized by the American Civil Liberties Union (ACLU), the Obama administration is planning to ask Congress to delay terror suspects' probable cause hearings as a way to allow interrogators additional time for questioning before the individual is informed of their rights or shown to a judge.

Standing law requires suspects be read their Miranda warning -- the age-old "right to remain silent" in the presence of officers -- and be presented to a judge to establish probable cause for imprisonment within six hours of detaining them, unless a judge is unavailable: a fact that did not go unnoticed by Talk Left.

"Just a year ago, the Supreme Court decided Corley v. U.S.," the blog noted, quoting the ruling as saying:

Under the rule as revised by §3501©, a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was “reasonable considering the means of transportation and the distance to be traveled to the nearest available ”). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was “made voluntarily and … the weight to be given is left to the jury.” Ibid. If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.

Generally, if a judge is not available within six hours, law enforcement is required to bring a suspect before one for an initial hearing within the first 48 hours of imprisoning the individual.

..more..

[katandmoon]

1. Cheney must be proud!

[sandnsea]

2. Except in rural America

Where there's a judge in town once a week, and if that day happens to be a holiday, you can sit in jail for a very long time. And the ACLU doesn't give a shit.

So let's keep in mind what justice really looks for a ton of Americans in jail over parking tickets, while we freak out about 6 hours for terrorists.

[merh]

3. You are confusing federal law with state and local laws.

Federal law, rules and standards created by Congress in an effort to protect the rights and ensure fair trials and fair treatment, differ from state laws and rules of procedure and practice.

This federal law is to ensure that the detainee who confessed is not abused, can't cover up too much if you are only allowed 6 hours to make purdy.

State laws have better discovery rules for the accused, they don't allow trials by ambush like the federal rules allow. Federal rules do provide more protection in the first hours and days of the arrest, but those too can be circumvented.

Good faith and reasonable efforts are quite easy to show and argue.

[sandnsea]

6. Due Process and Miranda apply to everyone

city, county, state, federal, everyone. And no, state and local laws do not always have better rules for the accused. That's why people have had to go to the Supreme Court to get their rights upheld.

[merh]

8. delete dupe

[merh]

9. No one said otherwise.

Miranda is a SCOTUS case that says that everyone is entitled to be told about their rights before being interrogated, after arrest. Miranda doesn't apply to everyone, everyone is guaranteed specific Constitutional rights as found in the Bill of Rights. Miranda is a procedure adopted after the case Miranda v. Arizona was decided wherein SCOTUS determined that every citizen should be told what their rights are under the constitution after their arrest and before being required to answer any questions.

Due Process does apply to everyone as the 14th amendment guarantees that all rights contained in the Bill of Rights to the Constitution are to be afforded to the citizens of the states.

There are NO time limits provided in the Constitution or the Bill of Rights relative to when a hearing is timely, as to what constitutes fair and reasonable due process protections.

Those time limits or time requirements that do exist, like the 6 hours referred to in the OP, are statutorily created and even when the statutes are not adhered to as absolutes, the courts review for reasonableness and relative to the "interests of justice" and "public good".

Since the time is statutorily created it can be statutorily modified or amended. It can be increased by Congress and that is what the Obama administration appears to be trying to have done.

.

[sandnsea]

10. Well if two weeks is good enough for rural America

then it's good enough for a terrorist, right?

As to the rest of your commentary, well duh.

[merh]

11. Not necessarily (and two weeks is considered an abuse of process)

Relative to the rest of my post and your immature response.

Don't you hate when you learn something new and can't come back with an intelligent reply or even a simple "thank you for clarifying"?

[sandnsea]

13. Thank you for acknowledging my original point.

There are lots of places in the country where people would be thrilled to get to a judge in 6 hours, or 48 hours. They don't. And the ACLU doesn't care. Of course it is an abuse of process. So let's not forget how little we care about our own citizens while having a hissy fit over 6 hours of questioning.

And do you honestly think you're the only one who knows the history of Miranda?

[merh]

15. Considering the fact you consider Miranda a right, yes, I do believe

my post educated you and corrected your misconception.

The 6 hours is the law, it is a statutory requirement and as long as it is and as long as it provides a protection the ACLU opposing a revision to the law is appropriate and not unexpected. Just like any law, every citizen and every organization is entitled to object to or to support a revision if they feel like it. If you live in a city or county that allows that people can be held for two weeks without a hearing then you are the one at fault for not opposing the practice as it is against the law. You have as much an obligation to protecting the constitution as does the ACLU.

[sandnsea]

16. Miranda is all about rights

Miranda defines the rights in the Constitution. And while it has come under attack in recent years, it can't be altered without ending up in a supreme court challenge. Just like they can't alter due process and speedy trial. Yes, there are variations depending on the court and the circumstances. Two weeks ain't it. It just takes someone with the money or the clout to force the local justice system to function within decided law, that's all. The ACLU isn't currently interested.

[merh]

18. Miranda doesn't define the rights. The constitution is clear and

the rights don't have to be defined. What Miranda does is mandate that the accused be informed of what their rights are before they are interrogated after lawful arrest.

The constitutional rights are not attacked as much as they are ignored and SCOTUS explains them or how they are to be protected.

There is the statutory right to speedy trial and there is the constitutional right to speedy trial. Speedy trial is not the same as the due process right to be lawfully charged and advised of the charges against you.

ACLU takes on matters that concern folks who don't have money, they just don't take on every thing that people perceive to be constitutional violations. Most of the time folks are like you, woefully misinformed - too much television and not enough practical knowledge of the justice system or any book knowledge of how our system works.

Yes, unfortunately those with money get justice - that is because they can afford to hire professionals who have that all too important practical experience and book knowledge necessary to understand how the judicial system works.

You complain but you sure don't seem to do much other than that, what a pity.

[ProSense]

19. "The public-safety exception already exists: the question is how it ought to apply in contexts"

Constitutional law already permits law-enforcement officials to question a suspect in custody, without Miranda warnings, if public-safety considerations justify doing so. For at least 25 years, it has been clear that law enforcement does not have to provide Miranda warnings before asking a suspect questions that, as the Supreme Court has put it, are “reasonably prompted by a concern for the public safety.” Thus, if the FBI captures a suspected terrorist bomber, and has grounds for concern that other attempted bombings might be in motion, the FBI can non-coercively interrogate the suspect for information about those other suspected plots without giving the suspect Miranda warnings. One crucial consequence is that any statements the suspect makes during that questioning that also incriminate himself can be used against him in a later criminal prosecution.

Yet the Court has recognized and elaborated the public-safety exception in cases unlike many of today's terrorism cases, and thus the boundaries of the exception in the terrorism context remain unclear. When the FBI or other government agencies capture a terrorist suspect, they will often want to question him or her for two related, but different kinds of purposes: (1) for information that will protect the public against any immediate security threats and (2) for more general intelligence about others who might have assisted the suspect in the (completed or attempted) act of terrorism for which he has been apprehended, about the nature and organization of the terrorist groups he or she is associated with (if any), and the like. While the public-safety exception permits pre-Miranda questioning for the first purpose, how that exception applies to this second purpose is far from clear.

Is that a problem for effective counterterrorism efforts? Before addressing that question, it is important to clear up a common confusion. There is not much doubt that the FBI can non-coercively question a captured suspect for more general intelligence information, without Miranda, if the government does not use any of the suspect’s testimony to incriminate him at a later criminal trial. Constitutional law does not impose any free-floating, all-purpose, affirmative obligation on law-enforcement officials to provide Miranda warnings anytime they have a suspect in custody; as Orin Kerr recently pointed out, constitutional law imposes only the more specific obligation not to use any incriminating statements taken from a non-Mirandized suspect against him at his later criminal trial. If the FBI and other agencies simply use the information to go after the terrorist organization and other suspects – if the FBI gives this information to the government of Pakistan, for example, which then uses it to capture other suspects there – the fact that this information was obtained through non-coercive questioning, in the absence of Miranda, obviously does not create any legal problem.

But suppose counterterrorism experts do believe there is a conflict between effective questioning of a suspect for general intelligence information, provision of Miranda warnings, and the ability to effectively prosecute that suspect criminally. I have spoken with interrogators of high-level terrorist suspects from the FBI and the NY Police Department’s Counterterrorism Unit, as well as prosecutors, and I have heard a range of views on that question. I do not have the expertise, nor consider myself well-informed enough, to answer that empirical question. But if policymakers do come to the conclusion that a serious conflict of this sort exists, and that policy should be changed to mitigate this conflict, what would be the way of doing so that most directly centers in on this problem?

In my view, the way to do so would be for Congress to enact legislation to define the contours and boundaries of the public-safety exception to Miranda in terrorism cases. The public-safety exception already exists: the question is how it ought to apply in contexts, such as terrorism investigations, in which there is uncertainty because the courts have not yet had to define the scope of the exception. Congress could define the circumstances in which law enforcement can engage in non-coercive questioning of terrorist suspects, without Miranda warnings, for purposes of gathering general intelligence information, purpose (2) above, while still being able to use any statements against that suspect at trial. Informed by counterterrorism experts, Congress could specify the time period in which such questioning is necessary and permissible (hours? a day? several days?). Congress could consider authorizing a brief period of initial, non-Miranda interrogation, but then require law enforcement to get judicial authorization for any further period of such questioning. In other ways, Congress and the President could codify what these two institutions jointly believe is the appropriate and necessary contours of an intelligence focused, non-Miranda period of questioning.

link

The administration hasn't submitted a proposal to Congress. Maybe they want to better define the exception.

[merh]

20. perhaps they do

Read what you quoted (for whatever reason you quoted it):

..., it is important to clear up a common confusion. There is not much doubt that the FBI can non-coercively question a captured suspect for more general intelligence information, without Miranda, if the government does not use any of the suspect’s testimony to incriminate him at a later criminal trial. Constitutional law does not impose any free-floating, all-purpose, affirmative obligation on law-enforcement officials to provide Miranda warnings anytime they have a suspect in custody; as Orin Kerr recently pointed out, constitutional law imposes only the more specific obligation not to use any incriminating statements taken from a non-Mirandized suspect against him at his later criminal trial ...

[ProSense]

21. The exception is clear:

It allows questioning, but clearly states the information obtained cannot be incriminating.

The exception is constitutional, but the exception doesn't define a time frame, for example.

[merh]

22. I don't follow your posts? You seem to just be making statements

with no purpose. What exception are you referring to?

If you understood what I originally wrote you would understand that there are constitutional obligations that have been further defined or protected by the US Code or federal statutes written and enacted by Congress.

The OP discusses the alleged desire of the Obama administration to seek to have congress amend 18 USC § 3501 which currently reads as follows:

18 USC § 3501. Admissibility of confessions

(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.

(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including

(1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment,

(2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession,

(3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him,

(4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and

(5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.

(c) In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate judge or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate judge or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge or other officer.

(d) Nothing contained in this section shall bar the admission in evidence of any confession made or given voluntarily by any person to any other person without interrogation by anyone, or at any time at which the person who made or gave such confession was not under arrest or other detention.

(e) As used in this section, the term “confession” means any confession of guilt of any criminal offense or any self-incriminating statement made or given orally or in writing.

The OP contains the following language from the article:

========================
Under the rule as revised by §3501©, a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was “reasonable considering the means of transportation and the distance to be traveled to the nearest available ”). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was “made voluntarily and … the weight to be given is left to the jury.” Ibid. If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.

Generally, if a judge is not available within six hours, law enforcement is required to bring a suspect before one for an initial hearing within the first 48 hours of imprisoning the individual.
========================

A suppression hearing is conducted if the accused seeks to have his/her confession or incriminating statements suppressed due to a constitutional or statutory violation. If no statement or confessions is going to be used against the accused to prove guilt at trial, there will be no suppression hearing (or rather no need for a suppression hearing).

Let me point out just as an FYI, the 48 hours to have an initial appearance as referenced above is also a statutory obligation created in an effort to ensure the constitutional right of the accused to due process and to know the nature of the charges against him or her.

.

[ProSense]

23. What does a confession and availability of a judge have to do with the exception?

Based on your question: "What exception are you referring to?"

Nothing.

[merh]

24. There is no "exception".

There are legal obligations as guaranteed by the constitution and as enacted by the legislature (state and/or federal).

If you intend to question someone to get information from them to charge them with a crime then you are required to tell them of their constitutional right to remain silent (against self-incrimination) and their right to have a lawyer.

If you are questioning a detainee to try to find out who their accomplices are and/or if the public is in any danger and you do not intend to use what they have to say against them in a court of law to prove their guilt, then you don't have to warn them about their right to remain silent or their right to have a lawyer.

If they ask for a lawyer, you can question them after their lawyer has shown up and they can answer the questions if they want to, even if their lawyer says "don't answer that".

[ProSense]

25. Yes

there is.

[merh]

26. Now I follow you.

You have gone outside of the OP and are discussing the "public safety exception" but you are not correct in the conclusions you have reached regarding the exception. It would appear that you don't understand what it is you are discussing (and it is a good thing you are not working for anyone with the administration relative to the issues at hand, the amendment of an existing federal statute written as a practical reinforcement of the existing constitutional guarantee.)

You claim:

The exception is clear:

It allows questioning, but clearly states the information obtained cannot be incriminating.

The exception is constitutional, but the exception doesn't define a time frame, for example.

The exception does not provide that the information obtained cannot be incriminating. What else is the statement made identifying the location of the gun used by a would be rapist, the acknowledgment of the existence of the weapon, an item used to identify the assailant, but incriminating.

Perhaps you don't understand the OP in the same manner that I didn't understand your posts (which were outside of the OP and not in response to any of my replies to the other made in an effort to explain what they obviously didn't realize about the existing federal statute that may well be revised).

From the article cited in the OP:

In a move that's being heavily criticized by the American Civil Liberties Union (ACLU), the Obama administration is planning to ask Congress to delay terror suspects' probable cause hearings as a way to allow interrogators additional time for questioning before the individual is informed of their rights or shown to a judge.

The case you cite to relative to the public safety exception has nothing to do with what the law the Obama administration is seeking to have amended.

The prophylactic Miranda warnings therefore are "not themselves rights protected by the Constitution but instead measures to insure that the right against compulsory self-incrimination protected." Michigan v. Tucker, 417 U. S. 433, 444 (1974); see Edwards v. Arizona, 451 U. S. 477, 492 (1981) (POWELL, J., concurring). Requiring Miranda warnings before custodial interrogation provides "practical reinforcement" for the Fifth Amendment right. Michigan v. Tucker, supra, at 444.

My question to you and my comments in this thread are logical given the actual issue(s) being discussed and what appears to be your failure to understand the "public safety exception" (a conclusion reached based on your statements related to same in this thread). The efforts by the Obama administration are not related to the "public safety exception" as much as they are related to a federal law that was enacted by Congress in an effort to provide "practical reinforcement" to protect the fifth amendment right against self-incrimination.

What you seem to miss is that each case is considered on an individual basis, that the particular facts are viewed. The courts do not act in a vacuum, they do not apply case law or statutory law summarily - they look to the facts of the particular case and they make a decision based on those facts and the law.

The "public safety exception" is pretty clear, perhaps if you take the time to understand it and the topic of the thread being discussed you will be better understood when you post comments out of the blue.

We hold that on these facts there is a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence, 656*656 and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer.<6> Undoubtedly most police officers, if placed in Officer Kraft's position, would act out of a host of different, instinctive, and largely unverifiable motives — their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect.

New York v. Quarles, 467 US 649, 655, 656 (1984)

[The Wielding Truth]

4. I just shake my head at times like these. Obama... are you using all those brains?

[Catherina]

5. And the beat goes on... n/t

[amborin]

7. knr

[Rex]

12. So the government gets to torture them for a bit, then they get due process?

I thought by now smart people (or people I considered smart) would know how to handle a crime scene WHILE fighting a few wars overseas.

Imagine my disappointment.

[ProSense]

14. "Charlie Savage manages to squeeze a little bit of detail out of the administration "

*More Miranda machinations: Charlie Savage manages to squeeze a little bit of detail out of the administration in terms of what it has in mind for revising the Miranda process;

President Obama's legal advisers are considering asking Congress to allow the government to detain terrorism suspects longer after their arrests before presenting them to a judge for an initial hearing, according to administration officials familiar with the discussions.

Civil libertarians are trashing the idea as a departure from the rule of law. And Savage notes (as I reported yesterday) that no one from the administration has even approached anyone in Congress about this yet.

[BlueIris]

17. Ugly.

Not shocking, but ugly.