Obama rolls back Miranda rights

[DesMoinesDem]

Just a reminder

Thursday, Mar 24, 2011 08:24 AM CDT

New Justice Department rules say terrorism suspects do not need to be informed of their rights for lengthy periods
By Justin Elliott

The Obama administration has created a new interrogation policy in which investigators may waive the Miranda warning if they think it necessary to get timely intelligence from a terrorism suspect, the Wall Street Journal reports.

I reported in January that the Justice Department had created a new — but secret — policy on Miranda. The rule, named after a 1966 Supreme Court decision, holds that information from an interrogation is inadmissible in court unless the criminal suspect has been informed of his right to remain silent, and to a lawyer.

Now, the WSJ’s Evan Perez has gotten his hands on Obama’s new policy. While the WSJ didn’t print the full text, here is a taste:

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

The Supreme Court had previously recognized a “public safety exception” to Miranda under which police could interrogate suspects, typically for an extremely short period of time, about matters that could be an imminent threat. The classic example is: “Where’s the gun?”

But now there appears to be a new standard under which investigators can waive Miranda in order “to collect valuable and timely intelligence,” in the absence of an immediate threat.

http://www.salon.com/2011/03/24/obama_rolls_back_miranda/

[elleng]

1. Misleading headline. NOT an 'Obama rule.'

Public Safety exception has been in effect at least since 1980.

'Although respondent was in police custody when he made his statements and the facts come within the ambit of Miranda, nevertheless 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 [467 U.S. 649, 650] into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved. The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. In this case, so long as the gun was concealed somewhere in the supermarket, it posed more than one danger to the public safety: an accomplice might make use of it, or a customer or employee might later come upon it. Pp. 655-657.'

The origin of the public safety exception to Miranda, the case of New York v. Quarles, began in the early morning hours of September 11, 1980. While on routine patrol in Queens, New York, two New York City police officers were approached by a young woman who told them that she had just been raped. She described the assailant as a black male, approximately 6 feet tall, wearing a leather jacket with "Big Ben" printed in yellow letters on the back. The woman told the officers that the man had just entered a nearby supermarket and that he was carrying a gun.

http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest

[Fumesucker]

3. From the OP

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.”

[ZRT2209]

5. maybe the OP can provide facts on how Obama personally initiated this

[DirkGently]

7. No. The article is questioning new use of the "public safety exception."

This is again the question of how an executive interprets the law. The Salon article is talking about a suggestion that the administration has been utilizing the narrow S.C. ruling broadly in terrorism-related cases, as a matter of policy.

From a link in the Salon piece.

The Obama Administration is applying an old exception to the Miranda rule in a new way in order to interrogate terrorism suspects before reading them their rights, several experts tell TPMmuckraker, finding what one law professor calls a “middle ground” between those who want suspects put through the criminal justice system and those who believe they should be classified as “enemy combatants.”

http://tpmmuckraker.talkingpointsmemo.com/2010/05/experts_obama_admin_pioneering_more_robust_use_of.php

This is going to be debated in the days ahead.

[DesMoinesDem]

11. Try reading the article first.

Hell, try reading just the part I bolded. It's not misleading.

[blue neen]

18. I read the entire article.

Here's a part of it that was omitted from your post:

"UPDATE: Charlie Savage points out on Twitter that the last line of the Journal story seems to contradict the rest of the piece:"

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

"This is confusing because if pre-Miranda questioning will still be inadmissible in court, then it’s not clear the DOJ has changed much after all. But there are other complexities. For example, in the Christmas Day case, the FBI sent in a so-called “clean team” to conduct the second round of interrogations after the Miranda warning had been given to Abdulmutallab. The reason was for this was to “protect themselves from challenges to evidence or statements” obtained during the unwarned interrogation. Would such a “clean team” be necessary under the new guidelines?"

[cthulu2016]

19. It is an Obama rule and nothing in Quarles (1984) even remotely justifies it

Read the decision.

[one_voice]

2. Here we go...

[Phlem]

6. yep.

A drone per house.



-p

[SidDithers]

4. Keep trying...nt

Sid

[NYC Liberal]

13. Oh this is just the beginning…nt

[bhikkhu]

8. I think this would allow the guy to say where explosives were planted and so forth

...without legally incriminating himself, and without making anything he said admissible in court.

I would guess that would be the first thing on the minds of the police - where they might have planted or hidden bombs - and in this case the "public safety exception" would clearly apply.

[DirkGently]

9. The idea is that he would legally incriminate himself.

That's what the "public safety exception" case is about. The exception supposedly allows evidence gathered pre-Miranda on the basis that it's okay to not remind someone of their rights if there is a special public safety issue.

Hmmm.

[RBInMaine]

16. Good, except the information could probably still be used in court against him.

[geek tragedy]

10. Derp. nt

[Octafish]

12. NDAA 2012

Are American citizens or other individuals apprehended within the United States subject to indefinite military detention under the FY 2012 NDAA?
American citizens can be detained under the FY2012 NDAA because the bill codifies into federal statute existing authorities, which allow the military to detain U.S. citizens. The law is less straightforward for individuals, including citizens, apprehended in the United States. Although an amendment was added making clear that the FY 2012 NDAA is not intended to “affect existing law or authorities” relating to the detention of U.S. citizens or others picked up on U.S. soil, existing law is not clear on this point. For example, the Bush administration held two individuals apprehended in the United States – José Padilla (a U.S. citizen) and Ali al-Marri (a legal resident) – in military custody for years under the legal authorities that are now codified in the FY 2012 NDAA. If this or a future administration were to use the military to detain an individual apprehended on U.S. soil, it would pose serious legal issues, which would be decided by a court. President Obama has stated that he will not place an American citizen in indefinite military detention.

SOURCE: http://www.humanrightsfirst.org/2012/05/11/qa-what-the-fy-2012-ndaa-detainee-provisions-mean/

[RBInMaine]

14. Possible active and ongoing explosives and attacks entirely justify a Miranda exception for

a reasonable amount of time and for questioning limited to those possible active or imminent bombs/attacks for public safety purposes. Again, there would have to be a time limit and a limited scope of questioning. What if additional bombs are out there and could explode? Should we have to Miranda? Of course not. Defies common sense and insults public safety concerns. Look at the totality of circumstances, and use common sense.

[DesMoinesDem]

24. This goes beyond an immediate threat.

"But now there appears to be a new standard under which investigators can waive Miranda in order “to collect valuable and timely intelligence,” in the absence of an immediate threat."

[AnotherMcIntosh]

15. After Obama appointed Kagan as Solicitor General in 2009, she participated in the gutting Miranda

See "Kagan and the Death of Miranda"

In 2010 when ... "the U.S. Supreme Court finally dealt Miranda a death blow. Elena Kagan, Obama's nominee for the Supreme Court, was complicit in Miranda's demise. Her participation may give some insight into her views on the rights of criminal defendants, and her understanding of how the law affects ordinary people."
...
"So what was Kagan's role? As Solicitor General, she filed a brief in Berghuis v. Thompkins for the United States as amicus curiae (friend of the Court). The U.S. was not a party in the case since Thompkins had been convicted in state court and it was the State of Michigan that challenged the lower court's ruling. Kagan did not have to enter the fray and take a position, but she decided to do so.

"Kagan's brief was even more aggressive than Michigan's. ..."

http://www.huffingtonpost.com/charles-weisselberg/elena-kagan-and-the-death_b_596447.html

On May 10, 2010, after Kagen's aggressive brief against the Miranda rule was submitted, President Obama nominated her to be a Justice on the Supreme Court.

On June 1, 2010, the Supreme Court formally agreed with her anti-Miranda view.

[randome]

17. Jesus. Fucking. God.

Will you and your cohorts relax? It just pains the hell out of you that LE did such an excellent job the past few days, doesn't it?

[Hissyspit]

20. No.

Miranda rights, and the erosion thereof are a very serious issue.

[randome]

21. I agree! And there is a SCOTUS-approved exemption that covers this.

LE is STILL doing this by the book. Only on DU does every single movement get parsed to infinity and back again. They have been doing a great job and they are STILL doing a great job.

[Tarheel_Dem]

23. +1,000,000,000

[Enrique]

26. it's a good article about an important policy change

why get so angry that someone posted this?

[DesMoinesDem]

27. Jesus you sound like some freeper.

If you are anti war you hate the troops. If you care about Miranda rights you hate law enforcement.

[Tarheel_Dem]

22. What took you so long?

[MOTRDemocrat]

25. Good thing that 99.9% of us don't blow random people up.

Couldn't care less what's recited to them.