Obama administration to consider Miranda reform

posted at 2:55 pm on May 10, 2010 by Ed Morrissey

The Obama administration insists that it can provide for national security by running suspected terrorists through the criminal court system, rather than the military commissions Congress has three times authorized for the purpose of handling foreign terrorists captured abroad.  Part of the problem with that approach, although by no means the only problem with it, is the requirement to Mirandize “suspects” in order to use their statements as evidence in court, as well as any evidence those statements produce.  While the Miranda requirement has a public-safety exception, its very narrow application doesn’t work for most terrorism investigations, especially when the point of the interrogation is to determine whether an attack is imminent.

Yesterday, Attorney General Eric Holder said that the Obama administration will consider reforming the Miranda requirement through legislative action to broaden the public-safety exception:

Attorney General Eric Holder, in his first appearances on Sunday morning news shows as a cabinet secretary, said the Justice Department is examining “whether or not we have the necessary flexibility” to deal with terrorist suspects such as the Pakistani-born U.S. citizen who tried to detonate a car bomb in Times Square last weekend.

“We’re now dealing with international terrorism,” Holder said on ABC’s “This Week.” “And if we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception.”

The announcement marked a potentially significant change by the administration as it tries to manage the politics of national security after repeatedly coming under fire, mainly from conservatives, for being too willing to read Miranda rights to terrorism suspects. The administration is trying to thread a difficult needle: of taking a harder line on terrorism while staying within the confines of the criminal justice system.

Holder and other administration officials said they would be engaging Congress on putting together a proposal for changes to the law, which requires suspects to be told that they have the right to remain silent and that their statements may be used against them in court. They did not provide specifics of possible changes.

Under the current public safety exception, statements obtained before issuing the Miranda warning may be used in court — including to charge suspects — if it is determined that police needed to obtain information quickly to prevent further crimes. Once an immediate threat is ruled out, the Miranda warning must be read, under current law.

The goal of revisions would be to give law enforcement officials greater latitude to hold suspects within the criminal justice system and interrogate them for long periods of time — without having to transfer them to a military system or designate them as enemy combatants, officials said.

The entire point of Miranda is to keep law enforcement from wringing confessions out of suspects without first advising them of their rights.  If they have probable cause to suspect that a specific, explicit threat to public safety exists, then the Quarles exception applies.  Without that, though, courts will throw out any admissions and any evidence resulting from those admissions under the “fruits of the poisoned tree” principle.  That exists to keep American citizens and legal residents from the abuses of government.

The problem here isn’t that the Quarles exception is too narrow.  It’s that Miranda doesn’t apply to counterterrorism and warfare in the first place.  When the US detained Umar Abdulmutallab, he was an agent of a foreign organization making war against the United States.  The military and intelligence agencies should have had custody of the EunuchBomber from the very beginning instead of law-enforcement agencies, whose High-Value Interrogation Group hadn’t even yet been formed a year after Barack Obama dismantled its predecessor. The same is true of terrorists captured abroad, such as Khalid Sheikh Mohammed and his cohorts.

However, that’s not true of Faisal Shahzad, an American citizen caught after the botched attempt to blow up Times Square.  He acted as an agent of the Taliban, but his citizenship requires the government to handle him with full constitutional protections, especially since he was captured in the US, albeit barely.  But that means that the proper charge against such a terrorist is treason, not terrorism, for abetting the nation’s enemies in conducting war on us.

This is why attempting to shoehorn a war into the criminal courts system is so dangerous to American citizens.  In order to make it work, the federal government will have to make broad changes to criminal procedure and constitutional protections not just for a few jihadis but for everyone who appears in the federal court system for justice.   Shahzad belongs in that system, but KSM, Abdulmutallab, and the Gitmo detainees do not.  The creation of military commissions protects our rights as well as American national security.

Don’t reform Miranda.  Stop trying to turn the federal courts into theaters of war.


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Liberal idea of civil liberties: Citizens should be treated like terrorists.

gwelf on May 10, 2010 at 2:59 PM

A few points:

1. If an interrogation of some small fry may prevent some future disaster, then who gives a rip if he gets set free in the end, so long as the greater danger is averted?

2. The obvious duplicity is glaring, when one considers that Bush was “tearing up the Constitution” for listening on phone calls from Yemen to people like this moron.

MJBrutus on May 10, 2010 at 2:59 PM

“This slope is slippery, ah what the he1l, I’ll jump down it anyway.”

-PBHO

Bishop on May 10, 2010 at 3:00 PM

I might be wrong, but didn’t the SC rule a few years back that the Miranda warning was no longer necessary, since everyone has heard of it – the warning is already implied or something?

lorien1973 on May 10, 2010 at 3:01 PM

But that means that the proper charge against such a terrorist is treason, not terrorism, for abetting the nation’s enemies in conducting war on us.

Exactly.

petefrt on May 10, 2010 at 3:02 PM

The Obama administration insists that it can provide for national security by running suspected terrorists through the criminal court system
============================================

Well,in light of the three Seals that were found not guilty,
i have a great idea,

make sure Jihadys don’t make it to court!!

canopfor on May 10, 2010 at 3:02 PM

Why am I nervous whenever this administration wants to “reform” or change our rights?

portlandon on May 10, 2010 at 3:07 PM

In order to make it work, the federal government will have to make broad changes to criminal procedure and constitutional protections not just for a few jihadis but for everyone who appears in the federal court system for justice.

But then isn’t that the idea?

MB4 on May 10, 2010 at 3:07 PM

Why am I nervous whenever this administration wants to “reform” or change our rights?

portlandon on May 10, 2010 at 3:07 PM

Next up.. Gun Rights reform.

upinak on May 10, 2010 at 3:09 PM

Don’t reform Miranda. Stop trying to turn the federal courts into theaters of war.

Righto. Because, before you know it, there will be legal precedents set with the prosecution of these dirtbags that will sully the prosecution and/or defense of other US cases, if I am understanding the possibilities correctly.

ted c on May 10, 2010 at 3:09 PM

Can you spell “distraction”?

faraway on May 10, 2010 at 3:10 PM

Why am I nervous whenever this administration wants to “reform” or change our rights?

portlandon on May 10, 2010 at 3:07 PM

that word…”reform” should be redefined.

Reform should now mean, “BOHICA”, as in, “bend over, here it comes again.”

ted c on May 10, 2010 at 3:11 PM

Next up.. Gun Rights reform.

upinak on May 10, 2010 at 3:09 PM

Oh Shiit.

portlandon on May 10, 2010 at 3:11 PM

Can you spell “distraction”?

faraway on May 10, 2010 at 3:10 PM

Far, what do you think this red herring is distracting at the moment? Obamacare? Tax and Cap (which is under a different name and coming up on Wednesday if anyone cares)? Or Illegals?

I pick number 2.

upinak on May 10, 2010 at 3:12 PM

Holder’s ineptness is going to get a lot of American civilians killed.

Oh, that’s right, he was part of the DOJ in the previous Democrat Administration. They got a lot of American civilians killed on 9/11.

Del Dolemonte on May 10, 2010 at 3:12 PM

I don’t get why they can’t grasp a simple concept

if you’re an american citizen who joins a terrorist group, you can be tried in American courts (and no, they havent been abject failures, as seen in the prosecution of the 93 bombers and others).

if you’re not an american citizen, you don’t have rights. you aren’t fighting under any national flag or national military. you are a stateless actor. sorry pal. military tribunal.

blatantblue on May 10, 2010 at 3:13 PM

These are the last people I want messing with Miranda…as with everything else they do you know there is a hidden or not-so-hidden agenda…

DCJeff on May 10, 2010 at 3:14 PM

I smell a rat. Instead of keeping enemy combatants in a system-military tribunals-that does not afford them all the benefits of civil/criminal law, they seek to instead rewrite the miranda rights. Rewriting the miranda rights that all of us share thus instead limiting what they can enjoy, they to limit what we can enjoy when it comes to civil protections of an over zealous state. This does nothing to limit the scope of what terrorists can do, it merely places limits on us.

The building blocks of tyranny continue apace.

Archimedes on May 10, 2010 at 3:15 PM

Obama and Holder just can’t get the idea of terrorism and war as being different from law enforcement.

fourdeucer on May 10, 2010 at 3:15 PM

Miranda isn’t the issue. This is the WORST of policitization, by the GOP and the Admin.

Shame on you all.

AnninCA on May 10, 2010 at 3:16 PM

this administration is so beholden to the likes of Amnesty Intnl, ANSWER, Act Now, Code Pink, and all the other venomous rodents of the left.

blatantblue on May 10, 2010 at 3:16 PM

I might be wrong, but didn’t the SC rule a few years back that the Miranda warning was no longer necessary, since everyone has heard of it – the warning is already implied or something?

lorien1973 on May 10, 2010 at 3:01 PM

No. They actually reaffirmed Miranda. What happened was that the original Miranda decision said that Congress could modify the warning. And Congress actually did that. But no one picked up on that until a 4th Circuit case in the 1990s. So it went all the way up to the S.Ct., which basically held that since the Miranda warning was what society expected nowadays, that that language would stand.

I forget the name of the case.

rbj on May 10, 2010 at 3:17 PM

The best reform at DOJ would be to send sleazy Eric Holder back to the rock which he crawled out from under.

viking01 on May 10, 2010 at 3:17 PM

Miranda isn’t the issue. This is the WORST of policitization, by the GOP and the Admin.

Shame on you all.

AnninCA on May 10, 2010 at 3:16 PM

Then enlighten us and Ed with your superior understanding and reasoning.

gwelf on May 10, 2010 at 3:18 PM

However, that’s not true of Faisal Shahzad, an American citizen caught after the botched attempt to blow up Times Square. He acted as an agent of the Taliban, but his citizenship requires the government to handle him with full constitutional protections,

http://sultanknish.blogspot.com/2010/05/constitution-and-times-square-car.html

The fact of the matter is that it was common practice to treat spies, saboteurs and pirates as unlawful combatants who were tried by military tribunals and executed at will, regardless of whether their disguise included US citizenship or not.

In the case of the WW2 saboteurs, Ex parte Quirin, the court stated that;

…entry upon our territory [317 U.S. 1, 37] in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States.

Paragraphs 351 and 352 of the Rules of Land Warfare, already referred to, plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States. Modern warfare is directed at the destruction of enemy war supplies and the implements of their production and transportation quite as much as at the armed forces. Every consideration which makes the unlawful belligerent punishable is equally applicable whether his objective is the one or the other. The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.

jp on May 10, 2010 at 3:21 PM

Buy a gun, end up on the terrorist watch list. No one knows how, it just happens.

Obama-Speak, the fusion of sophistry and Newspeak. It’s not a gift, it’s just lies.

tarpon on May 10, 2010 at 3:21 PM

And if this was still the Bush administration talking about this, the media explosion would occur in 3…2…1…

Mo_mac on May 10, 2010 at 3:22 PM

Really?

I’ve not heard anything about this, can you link to anything I very much wish to informed of anything along these lines.

Archimedes on May 10, 2010 at 3:25 PM

Buy a gun, end up on the terrorist watch list. No one knows how, it just happens.

Obama-Speak, the fusion of sophistry and Newspeak. It’s not a gift, it’s just lies.

tarpon on May 10, 2010 at 3:21 PM

Really?

I’ve not heard anything about this, can you link to anything I very much wish to informed of anything along these lines.

Archimedes on May 10, 2010 at 3:25 PM

Archimedes on May 10, 2010 at 3:26 PM

Wasn’t Holder going to be the next thrown under the bus? Wish he would go away.

search4truth on May 10, 2010 at 3:27 PM

Why are they suddenly worried about Miranda?

Esthier on May 10, 2010 at 3:29 PM

Holder full well knows that any attempt by congress to weaken Miranda in federal criminal proceedings will be enjoined immediately and lead to years of litigation until the SCOTUS will ultimately rule on the new law’s constitutionality.

The Miranda rule, which is an extra-constitutional procedure dreamed up and imposed by the SCOTUS and can only be changed by the Court.

In the meantime, the current Miranda rule will remain in effect, which is precisely what Holder et al. want, so they can apply it to terrorists and domestic traitors, all the while appearing to be getting tough on terror.

Typical smokescreen illusions, once again.

TXUS on May 10, 2010 at 3:29 PM

It’s that Miranda doesn’t apply to counterterrorism and warfare in the first place. When the US detained Umar Abdulmutallab, he was an agent of a foreign organization making war against the United States. The military and intelligence agencies should have had custody of the EunuchBomber from the very beginning instead of law-enforcement agencies, whose High-Value Interrogation Group hadn’t even yet been formed a year after Barack Obama dismantled its predecessor. The same is true of terrorists captured abroad, such as Khalid Sheikh Mohammed and his cohorts.
However, that’s not true of Faisal Shahzad, an American citizen caught after the botched attempt to blow up Times Square. He acted as an agent of the Taliban, but his citizenship requires the government to handle him with full constitutional protections, especially since he was captured in the US, albeit barely. But that means that the proper charge against such a terrorist is treason, not terrorism, for abetting the nation’s enemies in conducting war on us.

Excellent points, Ed! A foreigner who tries to kill Americans SHOULD be tried in a military tribunal, while an American citizen who tries to kill Americans MUST be tried in American criminal court and Mirandized, but should be charged with treason. There’s also the possibility of offering a citizen terrorist like Shahzad a somewhat lighter sentence (for example, 30 years instead of life) if he names his accomplices, even after he hears the Miranda rights.

But the fact that Shahzad recently became an American citizen begs the question–shouldn’t ICE be screening applicants for naturalization more carefully?

Steve Z on May 10, 2010 at 3:30 PM

Stop trying to turn the federal courts into theaters of war.

hear hear!

cmsinaz on May 10, 2010 at 3:32 PM

But the fact that Shahzad recently became an American citizen begs the question–shouldn’t ICE be screening applicants for naturalization more carefully?

Steve Z on May 10, 2010 at 3:30 PM

you would think, but I think the PC patrol is in charge there….

cmsinaz on May 10, 2010 at 3:33 PM

The Administration is going to try to appear to be tough on terror so that they won’t lose as many Democrats in the mid-term elections. They must have see some very bad internal polls.

kingsjester on May 10, 2010 at 3:35 PM

He acted as an agent of the Taliban

So a military tribunal is appropriate.

nazo311 on May 10, 2010 at 3:35 PM

In the cases of the Fort Hood shooter, Underware and the NY bombers, Miranda is totally unnecessary.

Miranda ONLY governs the use of evidence collected from interrogation AGAINST THAT PERSON!!!

We could have questioned all of them perpetually without a Miranda warning. We had plenty of evidence without them saying a word. And ALL of the evidence would have been usable against others, unless we beat him.

barnone on May 10, 2010 at 3:38 PM

These pesky terrorists are just distractions from Obama’s war on the Conservative-American community.

NoDonkey on May 10, 2010 at 3:38 PM

Really?

I’ve not heard anything about this, can you link to anything I very much wish to informed of anything along these lines.

Archimedes on May 10, 2010 at 3:25 PM

Serial numbers on Ammo?

upinak on May 10, 2010 at 3:44 PM

OT, but the absolute unthinkabe idiocy has just occurred without any input from an elcted official of any kind! Via Bloomberg…

May 10 (Bloomberg) — The U.S. Federal Reserve will restart its emergency currency-swap tool by providing as many dollars as needed to European central banks to keep the continent’s sovereign-debt crisis from spreading.

No, No, No, Noooooooooooooooooooooooooooooooo!

Archimedes on May 10, 2010 at 3:46 PM

Archimedes on May 10, 2010 at 3:46 PM

omg…:O

upinak on May 10, 2010 at 3:47 PM

I’ve warned people here and on other blogs that treating foreign terrorists like a U.S. citizen was going to be the slippery slope the liberals were screeching about during the Bush years. As a cop I could see this coming a mile away.

Howcome on May 10, 2010 at 3:51 PM

Liberal idea of civil liberties: Citizens should be treated like terrorists.

gwelf on May 10, 2010 at 2:59 PM

And the corollary: Terrorists should be treated like citizens.

The new Miranda could be useful against the Tea Partyers though.

lonesomecharlie on May 10, 2010 at 3:51 PM

When Obama’s and Holder’s liberal lawyers get through with it.

You have the right to remain silent except…

(Insert 2332 single spaced pages of useless BS Here detailing exceptions and ending by asking if the suspect wants to be an organ donor and if he/she would like to register to vote)

Three days later…..

Do you understand these rights as I’ve stated them to you?

Oldnuke on May 10, 2010 at 3:52 PM

I forget the name of the case.

rbj on May 10, 2010 at 3:17 PM

Dickerson v. United States

Barnestormer on May 10, 2010 at 3:53 PM

Dickerson v. United States

Barnestormer on May 10, 2010 at 3:53 PM

Thanks!

rbj on May 10, 2010 at 3:56 PM

Ed should have finished this post title with “What could go wrong?”

Wine_N_Dine on May 10, 2010 at 3:57 PM

An example of people unclear of the concept,again from Bloomberg…

The Fed said today it’s not at risk of any losses on the swaps, because the ECB is obligated to repay the dollars the Fed provides at the same exchange rate.

Hey Bernacke, screw the rate, the have to have the money to begin with! If they had the money (by the way, neither do we) they wouldn’t be having an emergency in the first place!

We Are So Screeeeeeeeewwwwwwwd!

Archimedes on May 10, 2010 at 3:58 PM

Liberal idea of civil liberties: Citizens should be treated like terrorists.

gwelf on May 10, 2010 at 2:59 PM

Only citizens with whom they disagree.

CurtZHP on May 10, 2010 at 3:59 PM

rbj on May 10, 2010 at 3:56 PM

You’re welcome.

Barnestormer on May 10, 2010 at 4:01 PM

“We’re now dealing with international terrorism,” Holder said on ABC’s “This Week.”

You mean…just now? Hello…Bueller..Bueller….don’t you mean multinational man-caused disasters? “Killers without Borders”?

Does 9/11 ring a bell, Champ? If I say “Bin Laden” whats the first thing that pops into your head…beside Bert from Sesame Street?

Dolts. WE have been dealing with international terrorists since The Jackal and the Olympics in Munich. LIBERALS have been in denial until now.

So, lets edit the statement so that it rings true: “We now understand that there are individuals and groups, worldwide, who have an agenda that is centered on causing as much death and damage as possible to Americans and American interests. For 40 years, we first tried to ignore it, then we tried to use it for our own politcal advantage, and now, finally, we must admit Bush was right all along”

BobMbx on May 10, 2010 at 4:04 PM

How long before the headline “Obama administration pushing for Constitution Reform”

These morons are trying to completely change the country to a boot licking society who praises those who try to destroy us (Govt and Terrorist alike)

Whats the over/under on years it will take to fix what this guy can do in 4?

Rbastid on May 10, 2010 at 4:05 PM

Rbastid on May 10, 2010 at 4:05 PM

Makes you wonder if that guy from Russia, who said the US would split… is going to be right afterall?

upinak on May 10, 2010 at 4:13 PM

Miranda isn’t the issue. This is the WORST of policitization, by the GOP and the Admin.

Shame on you all.

AnninCA on May 10, 2010 at 3:16 PM

Wait, what? Where does the GOP fit into this equation in your mind?

Midas on May 10, 2010 at 4:16 PM

Shame on you all.

AnninCA on May 10, 2010 at 3:16 PM

You don’t know the meaning of the word shame.

Del Dolemonte on May 10, 2010 at 4:33 PM

The new Miranda could be useful against the Tea Partyers though.

lonesomecharlie on May 10, 2010 at 3:51 PM

My point exactly. It’s not that they’d get something out of me that would then be thrown out in a court of law anyway…. it’s that they’d use looser justifications for interrogation as a form of intimidation.

Arrested for minimal criminal offense? If your political leanings are contrary to those in power, then we need to interrogate you before we Mirandize you because you might be dangerous. Now go home and tell all your friends what you went through.

I swear I’ve seen this movie before.

Animator Girl on May 10, 2010 at 4:46 PM

Commin zee here.
-
You vill show us your papers.
-

esblowfeld on May 10, 2010 at 4:49 PM

NO ONE will tell me how I can pray, when I can pray, or if I can pray.
Not today. Not tomorrow. Not ever.

annoyinglittletwerp on May 10, 2010 at 5:02 PM

In 743 BC, Marcus Tullius Cicero warned, “For the traitor appears no traitor — he speaks in the accents familiar to his victims and he wears their face and their garments and he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of a city. He infects the body politic so that it can no longer resist.”

lawcarp

donabernathy on May 10, 2010 at 5:10 PM

So. Obama doesn’t want to treat terrorists like citizens….

He wants to treat all U.S. citizens as terrorists.

logis on May 10, 2010 at 5:14 PM

So. Obama doesn’t want to treat terrorists like citizens….

He wants to treat all U.S. citizens as terrorists.

logis on May 10, 2010 at 5:14 PM

Oh boy, that would make me very dangerous.

platypus on May 10, 2010 at 5:44 PM

In order to make it work, the federal government will have to make broad changes to criminal procedure and constitutional protections not just for a few jihadis but for everyone who appears in the federal court system for justice.

But then isn’t that the idea?

MB4 on May 10, 2010 at 3:07 PM

Never let a crisis go to waste, especially when you can target your class enemies.

steveegg on May 10, 2010 at 6:13 PM

Will there be a special provision for teabaggers?

Kissmygrits on May 10, 2010 at 6:21 PM

The Obama administration insists that it can provide for national security by running suspected terrorists through the criminal court system
============================================

Well,in light of the three Seals that were found not guilty,
i have a great idea,

make sure Jihadys don’t make it to court!!

canopfor on May 10, 2010 at 3:02 PM

Dead terrorists press no charges.
Dead men tell no tales..

Next up.. Gun Rights reform.

upinak on May 10, 2010 at 3:09 PM

Once again, the UN is putting out a gun control treaty for BHO to sign onto.

Meanwhile I’m in the back praying to God the senate doesn’t ratify while I’m reloading some shells.

NO ONE will tell me how I can pray, when I can pray, or if I can pray.
Not today. Not tomorrow. Not ever.

annoyinglittletwerp on May 10, 2010 at 5:02 PM

What about who to pray to? I gander that’s implied.

You’ll never know though.

Chaz706 on May 10, 2010 at 6:23 PM

Alas, Ed, treason was redefined to include two such acts as Shahzad’s rather than one. So now what? Does that law get repealed and we return to rationality? (I bet not.)

{^_^}

herself on May 11, 2010 at 10:44 AM

donabernathy on May 10, 2010 at 5:10 PM

Seeing as he was born in 106 BC, that’s quite a trick!

Al in St. Lou on May 11, 2010 at 1:41 PM