Should Obama Administration change Miranda Law for Suspected Terrorist Interrogations?

[KoKo]

Obama Said to Be Open to New Miranda Look
By CHARLIE SAVAGE

WASHINGTON — David Axelrod, the top White House political adviser, said Monday that President Obama was amenable to Attorney General Eric H. Holder Jr.’s call for a new law allowing interrogators to question terrorism suspects for lengthy periods without informing them of their rights.

In an interview on CNN, Mr. Axelrod said Mr. Obama was “open to looking at” changing the Miranda rule, which generally bans prosecutors from using as evidence statements made by suspects in custody before they have been warned that they have a right to remain silent and to consult a lawyer. “There may be some things that have to be done,” Mr. Axelrod said. “Certainly we’re willing to talk to Congress about that. But they would be in the area of adjustments, not a wholesale revision.”

Mr. Axlerod’s comments came a day after Mr. Holder called for Congress to enact legislation that would carve out a new exception to the Miranda rule. It comes from a landmark 1966 Supreme Court decision that is intended to ensure that confessions are not coerced, consistent with the Fifth Amendment right against self-incrimination.

http://www.nytimes.com/2010/05/11/us/politics/11miranda.html

[DJ13]

1. No

Is he a Democrat, or a Bush Republican?

[VMI Dem]

2. Why not?

[Kurt_and_Hunter]

3. How can they talk about this like it's optional?

Until the Supreme Court says otherwise the Miranda rules are de facto written into the Constitution.

But hey, half the SCOTUS is sadistic theocrats today, unlike the mid-1960s, so let;s give them an opportunity to "revisit" Miranda.

More Ann Coulteresque bullshit. (She once said that Congress should feel free to pass unconstitutional laws because constitutionality isn't their job... just pass any crazy thing and make the courts rule on it. Makes you wonder why these folks take an oath to uphold the Constitution...)

[Me.]

4. Not Just No. Hell No

They already have all the tools they need at their disposal and the exception already gives them latitude. Tinkering to fix something that ain't broke just to appease the Cons is the begin of a slide down a slippery slope. And just how do you customize a law anyway? I wish the Obama admin would get the message that kow-towing to the Cons only eggs them on and they are never going to be satisfied with anything Obama does.

[Guy Whitey Corngood]

5. If they do. I can't wait to read all the justifications for it here. nt

[Kurt_and_Hunter]

6. +1

[NJmaverick]

7. This can't be properly discussed with out bringing up New York v. Quarles

This is where the Supreme Court created an exemption when the safety of the public could be threatened.

If AG Holder feels the current Miranda rules are putting the public at risk, I am willing to let him go to Congress to try and change the law. That's how our Democracy works and if he goes too far that's what the Supreme Court is for.

[Kurt_and_Hunter]

8. Pure sophistry. Quarles has nothing to do with interrogation in custody.

Quarles concerns an "immediate interest." It is not an open-ended public safety exception.

Example: A policeman detains a visibly intoxicated driver following a crash. The car is aflame. He asks the driver, "Is there anything flammable in the trunk?" The driver says, "Yeah, my meth lab equipment is in there." Though the suspect has not been mirandized because the arrest process has not naturally arrived at that point the fruit of the cop's question is admissible because the question arose from an immediate public safety interest in the flow of events surrounding the arrest.

If one wants to play games one could appeal to some "public safety" in the majority of criminal cases. (There is a public safety interest in convicting a murderer so why do we ever need to Mirandize a murder suspect at all?)

Quarles concerns an inquiry made pre-arrest and obviously has nothing whatsoever to do with a public safety interest in unfettered lengthy interrogation of a suspect in custody.

And since President Obama and everyone in Congress took an oath to uphold the fricking constitution the Ann Coulter formulation that the other two branches are supposed to push the constitutional envelope and let the court's sort it out is grotesque.

[ProSense]

9. A constitutional exception exists

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.

link

[Kurt_and_Hunter]

11. You cite an exception that is not an exception.

The fruits of a non-Miranda interrogation cannot be used as evidence. That is the penalty applied to the state for not Mirandizing a suspect.

For instance, when police elicit a confession from a suspect in custody without informing him that he is not required to talk to them the confession is thrown out at trial, and usually the fruits of the confession. (If he confesses he threw the gun in a certain trash-can and the police go find it there they usually cannot enter the gun in evidence because it is tainted evidence.)

(I am not presuming you do not know all of that. I am filling it in for other readers of the exchange.)

You cite as an exception:

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.

That is not an exception, it is a clear implication of the original Miranda decision.

The OP concerns seeking to have the fruits of a non-Mirandized interrogation to which Quarles does not apply remain admissible as evidence.

[ProSense]

13. "The fruits of a non-Miranda interrogation cannot be used as evidence. " What?

It's an exception, and it's constitution. No one claimed the information can be used as evidence. The exception is to the Miranda, not the use of the information.

[Kurt_and_Hunter]

15. You seem to have a misunderstanding of Miranda.

The effect of Miranda is primarily a rule of evidence. The arrest ritual is made in order that evidence gained subsequently will remain admissible.

From the OP:

"In an interview on CNN, Mr. Axelrod said Mr. Obama was “open to looking at” changing the Miranda rule, which generally bans prosecutors from using as evidence statements made by suspects in custody before they have been warned that they have a right to remain silent and to consult a lawyer. “There may be some things that have to be done,” Mr. Axelrod said. “Certainly we’re willing to talk to Congress about that. But they would be in the area of adjustments, not a wholesale revision.”"

(The bold is not said by Axlerod, it is merely background supplied by the author.)

The "exception" that you can interrogate someone with the understanding that what you discover cannot be used in evidence is not an exception to Miranda, it is an application of Miranda.

(Many suspects have been convicted properly despite having not been read their Miranda rights. They are convicted on other, independently obtained evidence.)

One cannot defend the idea of changing Miranda while claiming that the change is already in effect.

If not a change in the evidentiary status of non-Mirandized confessions what sort of change do you think Axlerod was alluding to?

[Jennicut]

10. No, I really don't see the need for it. It is not hampering them from getting suspects to talk now.

Unless they "delayed" reading the rights and are kind of getting around it that way....the suspect talks and THEN you read him his rights.

[totodeinhere]

12. Absolutely not. In the last election I voted to get rid of that type of mentality. n/t

[ClarkUSA]

14. "Obama Administration" can't do anything of the sort. Only Congress has that power.

Consider what Holder actually said:

"We're now dealing with international terrorism. ... I think we have to give serious consideration to at least modifying that public-safety exception. And that's one of the things that I think we're going to be reaching out to Congress, to come up with a proposal that is both constitutional, but that is also relevant to our times and the threats that we now face."

What's wrong with "reaching out to Congress to come up with a proposal that is... constitutional"? Hmm?

Furthermore folks that have expressed outrage are ill-informed as to the Constitution:

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.

http://balkin.blogspot.com/2010/05/should-congress-codify-public-safety.html

"Holder knows what he's talking about. Those who don't need to stop pretending that using the words civil liberties makes them experts on the Constitution." http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=433&topic_id=291804&mesg_id=291950

That said, I don't see this as anything but an election year gambit to neutralize Republican talking points.

[KoKo]

16. Holder is calling for Congress to enact the legislation. Repubs and Dino's will vote for it...

"Mr. Axlerod’s comments came a day after Mr. Holder called for Congress to enact legislation that would carve out a new exception to the Miranda rule. It comes from a landmark 1966 Supreme Court decision that is intended to ensure that confessions are not coerced, consistent with the Fifth Amendment right against self-incrimination."