DOJ’s New Miranda Policy Betrays Constitution & Power of Judiciary

The proclivity of the Obama Administration to simply do as it pleases, whether it violates the Constitution, established authority or the separation of powers doctrine is beyond striking. Last week at this time they were ignoring the Constitutional right of Congress, the Article I branch, to be the determinative branch on the decision to take the country to war. Today Mr. Obama’s Department of Justice has stretched its ever extending arm out to seize, and diminish, the power and authority of the judicial branch and the US Constitution.

Specifically, the DOJ has decided to arrogate upon itself the power to modify the Constitutionally based Miranda rights firmly established by the Article III Branch, the Supreme Court. From Evan Perez at the Wall Street Journal:

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 move is one of the Obama administration’s most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court’s 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

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.

This type of move has been afoot for almost a year, with Eric Holder proposing it in a string of Sunday morning talk shows on May 9, 2010 and, subsequently, based on Holder’s request for Congressional action to limit Miranda in claimed terrorism cases, Representative Adam Smith proposed such legislation on July 31, 2010. Despite the howling of the usual suspects such as Lindsay Graham, Joe Lieberman, etc. the thought of such legislation died in the face of bi-partisan opposition from a wide range of legislators who actually understood Constitutional separation of powers and judicial authority. They knew the proposed legislation flew in the face of both concepts. And they were quite correct.

It was bad enough for the Obama Administration, headed by the supposed and so called “Constitutional scholar” Barack Obama, to propose inappropriate and unconstitutional legislation to restrict criminal suspects’ Constitution based Miranda rights, but it is an egregious step beyond to simply arrogate to themselves the unitary and unilateral power to do it by DOJ memorandum fiat.

It is not as if this is some kind of unexplored area with no legal precedent; there is clear precedent on the nature of Miranda rights. In Dickerson v. United States 530 U.S. 428 (2000), the Supreme Court left no mistake as to the nature of Miranda:

But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 517—521 (1997). This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction.


In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively.

Furthermore, the “public safety exception” the administration disingenuously bases their new Miranda policy on, is limited and does not support their expansive power grab. The public safety exception, first announced by the Court in Quarles v. New York, applies only where there is an imminent and immediate “great danger to public safety” and the officer who questions the suspect reasonably believes the information sought is necessary to protect the immediate public safety and the questions are limited to only those necessary to obtain the information to mitigate such threat. That is NOT what the Obama/Holder DOJ is contemplating or restricting their policy to and, thus, their policy is simply unconstitutional and inappropriate.

Let us not forget, this attempt by the administration is not aimed at terrorists and enemy combatants on foreign soil, it is aimed squarely at individuals arrested on domestic soil under the regular Article III criminal system. The law is quite established that the reading of the Miranda warning does not confer rights upon the arrestee, the rights are inherent and flow from the Constitution.

I am sure others can, and will, disagree (see for instance the bleatings of John Yoo), the principle is really quite simple: Miranda is a Constitutional based rule, and confirmed by Supreme Court precedent, and it cannot be amended or overruled by act of Congress. And it sure as heck cannot be overruled or amended by administrative fiat via a FBI memorandum.

  1. PeasantParty says:

    So, ummm. How many more infractions must we endure from Holder and his team? Gonzolas was hammered much harder. It’s past the time for Holder to be put on the spot and removed from office for subverting the laws and constitution of this land!

  2. justbetty says:

    Well, we’ve long known that Holder was a chump, but I’m still amazed and saddened by every new confirmation of that.

  3. BoxTurtle says:

    Holder is doing EXACTLY what Obama wants him to do. Holder is a TOOL, not a chump.

    Boxturtle (and has anyone seen Gonzo and Holder at the same time?)

      • BoxTurtle says:

        They’re not mutually exclusive.

        Holder knows exactly what he’s doing IMO and he’s signed on to be Obama’s Gonzo. He knows which of ‘his’ positions aren’t likely to hold up in court, but he doesn’t expect them to ever get to court. He’s probably right.

        In dealing with the DoJ the reversal of a common bit of wisdom is in order: Never attribute to stupidity what can adequately be explained by malice.

        Boxturtle (A decent man would have resigned in protest by now)

    • workingclass says:

      Obama is also a tool. I once saw a performance by a hilarious ventriloquist. The ventriloquist was an American Indian and his dummy was a Mexican. And the Mexican dummy had a dummy. A cowboy.

  4. Mary says:

    But bmaz – it’s national security!

    There is no law but Executive whim if those two words are whispered, right?

    After all, anyone who knows anything knows that, if you play the Constitution backwards it says – – – nothing.

    • cbl says:

      curses ! I knew I should have book marked it at the time – but there is an article out there on his HLR election from the perspective of the minority and female students – and I can’t do it justice, but he engaged/mobilized them all in his election effort and was 110% deferential to conservative, white, male contingent after being elected – yeah I know, I’m shocked as well X~o

      hey bmaz, thanks !

      • eCAHNomics says:

        110% deferential to conservative, white, male contingent after being elected

        I have a vague memory of that, but I wasn’t paying attention at the time. This is a current sort of focus of mine bc I think we’ll learn essential stuff about him if we investigate his history more thoroughly.

  5. spanishinquisition says:

    Today Mr. Obama’s Department of Justice has stretched its ever extending arm out to seize, and diminish, the power and authority of the judicial branch and the US Constitution.

    Once you’ve both declared that you can hold people indefinitely without trial as well as that you can assassinate citizens who haven’t so much as having been indicted, all this other stuff naturally follows. Holding people a bit longer before giving them a Miranda warning is comparatively minor to declaring you could hold people in gulags without being charged for as long as you want.

  6. Knut says:

    At some point, we are going to have to engage a discussion here on the logic of all these assaults on our civil liberties. I do not believe that they are fundamentally connected with the issue of the security of the United States as a nation state. The people who run the national security apparatus are too sophisticated to fall for that crap. We are not facing an existential threat on any plausible definition of such a threat. So one has to ask why the wiretaps, the tortures, and the effective abandonment of protections of peaceful protest and political opinion.

    Here’s what I think. First, there is the natural tendency for power to expand into a vacuum. Congress has abandoned its constitutional role as initiator of legislation, and has been effectively reduced the role of the old Roman Senate. The executive has moved to take up the space. We are now a plebiscitary democracy.

    But this can’t be the whole story. The security state is also a vast ecomic enterprise. People with real money have an interest in keeping that enterprise going. It does not, of course, have anything at all to do with real security. It is just a particularly unproductive way of making money. But people with money now run our politics.

    This brings me to the last point. The unprecedented rise in income and social inequality in the past generation has created a new view of government among those who dominate it that government is for the rich, that it’s purpose is to protect the top one or two percent of the population who in their view are the American people. And so it stands to reason that they want to impose rules that will effectively prevent the remaining 98 percent from doing what the people of Wisconsin did in Madison. In an odd, but perhaps not surprising way, our government has become what Marx claimed the liberal governments of nineteenth-century Europe were: the executive committee of the capitalist class.

    The hidden agenda is not national security, but the security of the rich.

    • alamode says:

      A referendum (also known as a plebiscite or a ballot question) is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of direct democracy. The measure put to a vote is known in the U.S. as a ballot proposition or measure


      Why our founding fathers “GAVE US A REPUBLIC, IF YOU CAN KEEP IT.”

      Benjamin FranklinThey understood the dangers of direct democracy.

      Hey, but it is what the LEFT has been wanting

      • PJEvans says:

        Some people are more clueless than others.
        You might want to think about that mirror you’re staring at and how it isn’t a window.

    • earlofhuntingdon says:

      This repeated sodomizing of the Constitution comes from Beltway Villagers who sometimes tell their partners, victims, unionists, prison and workhouse inmates, yachting guests, factory hands, and unnamed companions in leased condos to lay back and enjoy it.

      As Glennzilla points out, 9/11 was nearly a decade ago. The reason for doing this now is what? To hide an accumulation of past wrongs, lest a successor look back where Mr. Obama fears to tread? To insure we commit more in future? To legitimize the illegitimate grab on power the right has sought for two generations? In pursuit of the ultimate fantasy, that such acts will make Obama more electable, by persuading the right to vote for him while his “base” and independents stay home in disgust?

      The principal constraints on convictions of terrorists is that we frequently never grab the terrorist, but someone not involved. That and courts of law, you know, expect to base convictions on admissible evidence and logical expositions of public laws in force at the time we claim a crime occurred.

      Other constraints are that we brutalized detainees so long that we can’t try them or even let them go without admitting that we are not America the Beautiful, but the attic-hidden painting of Dorian Gray.

      Or we tortured the alleged perpetrator or his accomplice or family and can’t use the evidence, but we use it to make us feel good and to justify a system of permanent detention. Or we accidentally kill a detainee. And we use all of the foregoing to keep anyone, especially the innocent, in jail forever, too. Because we can.

      The legal “reasoning” for this latest arrogant assertion of power by our constitutional lawyer president and his Attorney General remains hidden, like an execrance from John Yoo. I wonder why. My bet is because of the “factual predicates” it relies on. They include, undoubtedly, state secrets, or so we shall hear. They may also contain more truthiness than a Newt Gingrich speech. But they will use that truthiness to justify and enshrine secret laws and secret power. Who knew that David Addington was a virus infecting the Potomac basin and not the former chief water carrier for Dick Cheney?

      As Glennzilla said,

      When you give Miranda warnings to Terrorism suspects, you’re honoring the Rule of Law and protecting American values; when you turn around and deny those very same rights, you’re showing your devotion to Keeping us Safe.

  7. earlofhuntingdon says:

    The only question our once and future president seems willing to ask, and that only of his sworn opposition in Congress and in Main Street, is

    “Our we safe enough? Have I done enough of your bidding for you to like me? Will you like me now, please, and stop throwing sticks and stones at me? That’s rude and they hurt. I so want to continue to be a player and go where no president has gone before. Will you let me in? Pretty please?”

    He asks the question, “Is it safe?” in eerily familiar tones and with increasingly similar effects.

  8. Mary says:

    I’m sure the highly trained staff at DOJ will do it better, but the new cards go something like:

    *You have the right to be assassinated.

    *Anything said by disappeared torture victims to make their torture stop or please the “GOD” the government has provided as their interrogator can and will be used in deciding whether to assassinate, disappear or torture you, your family and friends.

    *You have the right to have a medical professonal available to make sure your torture can continue for longer periods of time. If we don’t like the results from the initial torture-coercion, more will be provided.

    *Low level executive branch and military hires can decide at any time to institute any of these rights and they will never have to answer for anything they do in pursuit of these rights.

    **Do you understand each of these rights I have explained to you? Having these rights in mind, don’t you think it’s a good idea to say anything we want you to say?

    God bless the little Goldsmiths and Yoos and Holders (is today his soup kitchen day?) and Comeys and Ashcrofts and Bradburys and Bybees and Philbins and Muellers et al. The flat out amazing thing is that Obama hasn’t put Fredo on that list of possibles to run the FBI in the future.

  9. RevBev says:

    What a sad portrayal, esp in view of all the expectation that our ship of State would be righted from the disaster of W. The right has been trying to walk back Miranda for years….good job, Holder, et al.

  10. perris says:

    bmaz, you know I’m not a lawyer so correct me about this;

    I thought the justice dept always had the authority to question without a person’s benefit of miranda but that information could not be used at trial.

    so if information is important enough to put a case at risk they could always proceed without miranda

    am I wrong about that?

    • mattcarmody says:

      I’m not a lawyer, either, but I’m retired nypd. The rules we used to follow (this is 13 years ago) were as soon as a subject being questioned asked for an attorney, questioning ceased. What’s the point in questioning someone further when whatever is elicited is going to be disallowed at trial and if the continued questioning makes the environment in which the subject was held onerous enough, maybe even allowing him to go free? Once a person’s been indicted and brought to trial, jeopardy attaches and you risk the chance of allowing the guilty subject to walk just because you didn’t follow proper procedure.

      The thing is that we are supposed to be better than this. We take an oath to uphold certain principles which, theoretically, are so important that we are willing to die in order to make it possible for others to enjoy them. That might sound extreme, but if you approach public service from any other vantage point, then you can easily be tainted, bribed, and coerced to do the bidding of those who don’t like this system that protects everyone, instead of the privileged few.

      • bmaz says:

        Exactly, and none of it means much if there is no foundation for demonstrating that the individual knew and understood his rights.

      • earlofhuntingdon says:

        That logic applies when courts toss out such evidence – and the fruit it poisons, all evidence based on it. If the president can imprison anyone he wants indefinitely by merely proclaiming them a threat, what’s the need for evidence? It becomes padding to use against senatorial Luddites, who pine for the time when America was still a Republic.

        Even in open trials involving such methods, given a prosecutorial establishment willing brazenly to lie about the provenance of its evidence, how would we or a defendant any longer separate ripe from poisoned fruit?

        The current Supreme Court is also more conservative in its make-up than it was in 2000. Its position on discarding poisoned fruit may waver. How conservative will it be by the time a case on this policy runs the gauntlet of courts, procedures, lies and state secrecy claims and makes it to that court for review?

        • mattcarmody says:

          I was referring to the world I and most of us knew pre-9/11. Even then it was a battle because this whole “Let’s forget about Miranda” thing has been going on since the decision came down. It’s like the corporate personhood thing. Keep pounding away at it, given a long enough battle, and eventually these thugs get what they want, which is most of us under their goddamn heels.

          • earlofhuntingdon says:

            I agree. I don’t think Miranda was intended to make life hard for law enforcement. I think it is a legitimate attempt to balance conflicting aims: security in our daily lives, but with the freedom to live them without wariness of arbitrary treatment. There was a whole genre of films in the 1950’s, for example, several starring Henry Fonda, about how easily the “wrong man” could get the wrong treatment.

            These days, TPTB have decided that they increase their own power by ignoring that there are conflicts between security and freedom. It’s also a profitable enterprise. It’s harder in practice to hold privatized firms, performing government functions, accountable for acts their governments could once have been more readily held accountable for.

      • NMvoiceofreason says:

        So is the oath we take something like this:

        I, NMvoiceofreason, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of a citizen of the United States of America. So help me God.

        Thanks to my Dad working in IA for ten years, I got to know a lot of the Thin Blue Line, the honorable ones, and the not so. Thank you for your service to our country.

    • spanishinquisition says:

      “I thought the justice dept always had the authority to question without a person’s benefit of miranda but that information could not be used at trial.”

      To a certain degree I belive that is true, where you can do some things without commiting a crime in the process, but if you do those things you can’t subsequently charge that person with a crime…you get a certain benefit (like getting someone to spill the beans on someone else), but in exchange for that benefit you got, you have effectively given that person who was denied the right to counsel immunity from their own statements in the process.

  11. donbacon says:

    This affects all of us.
    Here in the Southwest (as in some other locales) we have Border Patrol checkpoints on interior highways. They were, by law, set up to look for immigrants but they are (naturally) expanding their scope.

    Recently I have been testing them. When the line allows me to come up to an agent, if he asks “are you a citizen” I have remained silent (Miranda*). I then get directed to “secondary” for further harassment/questioning.

    *Regarding Miranda in this situation, the Supreme Court has found that a brief immigration stop for the purpose of determining citizenship is legal, including asking, but there is a conflict because Miranda gives the person asked the right to remain silent. (Except, now, if you’re a suspected terrorist. Read on.)

    On one occasion the chief agent at that checkpoint told me he was also a police officer and he didn’t need probable cause to hold me, only reasonable suspicion that I was a terrorist. I responded “do you suspect that I’m a terrorist.” He said “no”, and I said “then “I’ll be leaving” and I left.

    He might have said “yes.” It was strictly his determination, out there in the desert, with armed brown-shirted agents and a German Shepherd sniffer dog nearby.

    Eventually we will all be suspected terrorists and Miranda won’t apply to us. And if we don’t submit to these neo-Nazis we may be taken out and shot as a recent Repub candidate suggested.

  12. AitchD says:

    Miranda (like many laws) depends on good faith in a free society. Law enforcement is not forced to act in good faith. That is, our system of law allows anyone to break those laws, and suffer the consequences. Other, repressive societies have police everywhere in one form or another to prevent people from breaking the law. Now it seems we have let lawyers concoct repressive measures.

    If a detainee is never specifically informed of his or her rights under Miranda, then there won’t be a lawful trial and certainly a conviction or failed appeal would be impossible. But so what, if law enforcement doesn’t care about getting a conviction? The system applies to everyone: the government also may break the law, and suffer the consequences. Turn up the heat very high to achieve the maximum chilling effect.

  13. ondelette says:

    They’ve been doing this since 2002 to all the rendered ones. They specifically wrote it into the MCA in 2006. Now they’ve brought it home. It was all just a matter of time, wasn’t it? But we had to let everybody yell about how Eisenstrager this and Constitution that. When Aafia Siddiqui was illegally taken from the Afghans in Ghazni in July of 2008, she wasn’t read her Miranda rights by the FBI, even though she was interrogated by them using, shall we say, enhanced interrogation techniques, until she set foot in Brooklyn, New York. Two weeks. So the people here are just getting a taste of what the others have been subject to for a long time now. Hurts, doesn’t it? When do they start the Article 16 funny business with the up to the border of torture but no further, and you can’t be cruel and unusual’d until you’ve been charged and convicted? Or the until you’ve been charged with a crime, you’re here under common Article 3?

        • eCAHNomics says:

          Yep, that was my memory.

          So Lindh was really the test case with how much they could get away with. An injured hapless U.S. citizen who had no idea what happened on 9/11.

          • mattcarmody says:

            You wanna hear what I think was a test case? The murder of John Lennon by Mark David Chapman shortly after Bush/Reagan were “elected.”

            Why was it a test case? TPTB wanted to know if the American people were still gullible enough to fall for the “lone nut” theory of assassination so that when the hit on Reagan was carried out by a supposedly crazed fan of Jodie Foster, also the son of a Bush family friend, Americans wouldn’t see it as a political move but the act of a single lone nut.

            Reagan heard that warning loud and clear and read his lines from that time on out, and the oligarchs established that the American people were as gullible as ever.

      • ondelette says:

        It was certainly after the major enhanced technique with the container and the backboard. “You have the right to remain silent. You have the right to try to hold on to a shred of your sanity while we fire into this here container with you inside it killing the people around you. You have a right to a backboard. If you cannot afford spiderstraps, they will be provided for you free of charge…”

  14. Triad1 says:

    Obama chose to teach constitutional law at the conservative U. of Chicago – home of the intellectually-bankrupt Law & Economics theory and the now demonstrated failure, deregulated-“free”-market economics.

    Northwestern U. (J school not their law school) was busy at work removing people wrongly convicted from death row and shutting down the death penalty in Illinois.

    Obama chose to expand his conservative network over doing the right thing – another example of poor judgement.

  15. Margaret says:

    I’m hoping SCOTUS will strike it down and I don’t care whether they do it from being all partisany or because they found some integrity somewhere.

  16. AitchD says:

    Don’t blame our criminals in power: they are merely taking advantage of our willingness to give up our rights. We allowed third parties to have our SS#’s (to get loans, jobs, utilities services, &c) without a legal challenge. We allowed corporations to develop and establish private law (aka licensing) so we could use their software (remember? one copy and only on one computer, &c) without a serious class-action challenge. We waived our 4th amendment rights when we agreed to pee into a jar as a condition of employment, or to play sports, &c.

  17. earlofhuntingdon says:

    In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively.

    In that regard, neither Congress nor the president has the legal authority to disregard such a civil right. It would seem that doing so, arrogantly and openly, is an attack on the Constitution unrelated to keeping us safe. It would also be illegal, as would be complying with such a policy. And we all know how much of a stickler for enforcing the law of the land is our Department of Injustice, which they enforce against Main Street and whistleblowers with passion and prejudice.

    • NMvoiceofreason says:

      While true, who would have standing to oppose this measure? Who would be harmed by it? Statements outside Miranda would be excluded by the courts. Are they seeking to construct a “safe harbor” for initial questioning? Is this a predicate for trying to shore up enhanced interrogations? Do they know how deep the water is against them in the courts? Yoo’s whirlpool is going to suck them under, are they grasping at straws? Or are Obama/Holder just doing what they always do, giving the right wing something they’ve wanted? So what are Holder and Obama getting in return?

      • bmaz says:

        Yes, I think something along those lines is right – a type of “good faith” exception as they have pried wide open on physical evidence. That is not all of this, but I think it a part.

      • earlofhuntingdon says:

        Statements would be excluded by the courts? That assumes one gets to court and the lower and appellate courts don’t simply agree that Obama has stated a valid “exception” to the Fifth Amendment. It assumes prosecutors are aware of what’s legit and what’s poisoned fruit, a bit of knowledge they may not want and prosecutors may not give them. It assumes state secrets claims don’t simply trump the whole inquiry, or that the worst infractions of this constitutional right are simply hidden away with indefinitely detained victims.

        If you think the courts are hostile to terrorism cases, you should look further. Material support charges, for example, seem surprisingly easy to prove. We’re all afraid we aren’t safe enough, or so Mr. Obama and the right hope. But their goals are to acquire power; whether we’re safe, as Dr. Szell might argue, is a means to an end.

        • Mary says:

          It assumes that the detained don’t get disappeared like they tried with Padilla into military detention (which has happened with Padilla and al-Marri); it assumes that the detained don’t get shipped to Jordan and Syria to be disappeared; it assumes that the detained don’t get taken from their FBI – extrajudicial process and handed off to the CIA to take to Egypt to be buried alive and then Libya for some nice quiet suicide; it assumes they don’t get suicided at GITMO; it assumes … so many things.

          So far the court has not confronted dead on what the ducks and dodges from SCOTUS and Congress means when you carry it out. To be fair, Scalia (who doesn’t care what you do with non-citizens or citizens off US soil) did take the strongest line in Hamdi, but Mz “Notablankcheck” and other meaningless phrases amounting to nothing, won the day. Scalia flat out said that Bush violated the Constitution by not granting habeas. He didn’t flinch from it – time of war and all that notwithstanding. He just couldn’t get a majority behind him. And somehow the press wasn’t that interested in reporting that the Conservative God on the court had just laid out impeachment grounds for their then-favorite War God, Bush.

          They’ve never really dead on dealt with the very open and obvious fact that GITMO was chosen for exactly the reason that Goldsmithians thought they could avoid court jurisdiction. They’ve never dealt head on with the fact that for a decade now, the DOJ on behalf of the Presidency has waged war on the judiciary and that the vast majority of its worst actions have been undertaken with a direct FU to the judiciary. And the judiciary has allowed it – from the state secrets invocations to the direct fibs by Clement about whether the US abuses its detainees to the destruction of evidence to the authorizations given for the downing of an American missionary’s plane to the carving up of dead, pregnant women, to threats to have foreign secret police forces “pick up” family members, etc.

          The dead on result of allowing so many exceptions to process is to pave the way for someone to be taken out of process.

  18. donbacon says:

    The US is killing suspected insurgents (terrorists).
    ISAF news release:

    KABUL, Afghanistan (March 18, 2011) – Afghan National Security and International Security Assistance Forces killed several suspected insurgents during a combined operation to detain a known insurgent leader in Nahr-e Saraj district, Helmand province, today.

  19. earlofhuntingdon says:

    Mission creep being as resilient a pest as it is, expect this rule for “terrorism-related” offenses to be expanded to include other “exceptional” alleged crimes, and to find its way to a local prosecutor near you. I’m sure Sheriff Joe has one or two in mind already that he’d like to have a chat with.

  20. Mary says:

    So, the main thing these regs and memos are for is Bivens protection, is that about it?

    “Good faith” and all, ya know.

      • mattcarmody says:

        Brennan Vs. Rehnquist is a very good book that keeps alive the way Americans used to think about fairness in this country before Rehnquist and the boys at the Federalist Society took the wheel.

  21. Surtt says:

    New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning

    I am confused, what is this supposed to do?
    The Miranda warning does not give you any rights you did not already have.
    All it does is remind you of those rights.

    • spanishinquisition says:

      “I am confused, what is this supposed to do?”

      Let Obama engage in enhanced interrogation for humanitarian reasons a la Manning in hopes that you’ll rat yourself out before you realize that a lawyer can step in.

      • Surtt says:

        I assumed that these people have gone over what to do when/if they get caught, including their rights. Maybe I am overestimating them.

    • earlofhuntingdon says:

      It’s a case of procedure, rather, it’s lack, trumping the right.

      Most defendants don’t know about the reach of their Fifth Amendment rights, the myriad of tv cop shows notwithstanding. (These days, those shows are as likely to model dripping disdain for Miranda and other rights. Their stars are always right, they always ID the right bad guy, and he’s always about to destroy the world.)

      Without awareness of one’s rights, one can’t claim them, especially under duress, regardless of one’s guilt or innocence. That’s another oft-repeated meme that needs to be set straight. Constitutional rights DO NOT belong only to the innocent. They belong to the innocent, the accused, the guilty, before, during and after someone becomes a suspect or convicted felon. They belong to those detained as if they were.

      Without a Miranda warning, a suspect may not be aware of his or her rights and that they can be asserted without penalty. They may not know that they can demand that an attorney representing them be present before they answer any questions, and that if they don’t know or can’t pay for one, the court will appoint one.

      The old rule was that the warning had to be given and that questioning had to cease, if a suspect demanded to see an attorney before it continued. The old relied on the courts’ commitment to ignore evidence elicited before it was given, and to ignore all information based on that evidence.

      This newly articulated position of Obama’s is not just about claiming the right to delay giving a warning about rights a suspect inherently possesses. It is a threat to the rules that exclude illegally obtained evidence. After all, as Ed Meese used to claim thirty years ago, the police wouldn’t arrest someone who wasn’t guilty. Nor do governments institute prosecutions against the wrong guy. And governments do not claim that they and the system “fail” if they fail to obtain a conviction.

  22. steven88 says:

    It is claer that it is not only members of the Bush administration should be tried for crimes against humanity but also the Obama administration.

  23. waynec says:

    surtt March @ 57 said,

    “New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning

    I am confused, what is this supposed to do?

    The Miranda warning does not give you any rights you did not already have.

    All it does is remind you of those rights.”

    If you are arrested at a protest for, say, tresspassing, you will (likely) be read your Miranda rights.

    You may be held till bail is posted or released on your promise to appear in court on the designated day.

    If you are a “suspected terrorist”, you may be held indefinitely.

  24. redX says:

    The IRONY was too much for the NEOlib “megaminds”.

    Reading the rights to someone that they can be silent and have an attorney – but then not allowing them and torturing them to “talk”.

    Mind you the torture is fine – its the intellectual irony that bugs their criminal ass.

    Hope the R’s impeach Obama, I would be fine with it as long as they impeached Bush at the same time.

  25. Mary says:

    Kind of weird synchronicity there. I don’t usually think much about individual justices, but I was thinking about Brennan last night even before this post.

    The hold isn’t just going to be a hold on giving them Miranda warnings is it – I’m reading it as a delay in letting them have any access to a lawyer of any kind either, even if they request it. IOW – no legal trail like they had for Arar or Padilla to keep them from being able to effectively disappear someone. Without the lawyers’ initial contacts with Arar and Padilla, they’d probably still be unaccounted for – this (Bush-Obama) DOJ has covered up worse. Isn’t the guy who filed the states secret affidavit as the DOJ cover up for Arar in the mix to be the new head of FBI?

    Is it too late to start an online moevement to have the Dog Whisperer appointed to head the FBI?

    rules, boundaries, limitations

    • fatster says:

      Oh, they’re very busy putting some final touches on this:

      FBI dedicates $1 billion to massive biometrics identification program LINK.

  26. spanishinquisition says:

    “I see it is all consistent. The new law of the land, the law of the Unitary Executive”

    AKA Absolute Monarch

  27. JohnLopresti says:

    Last week at this time they were ignoring the Constitutional right of Congress, the Article I branch, to be the determinative branch on the decision to take the country to war.

    I wonder how He of the Law of the Sea (professor JGoldsmith) would opine regarding TJefferson*s management of the Barbary tributes, sending the amphibious service to end the protection-and-enslavement activities of a western Mediterranean rim country.

    I think that is how congress got into aumf follow-on mode after Bushco developed enough information to show some targets for executive initial response.

    On the deMirandizing of caselaw, I would look to some of the rodeo conceptualizing of chief Justice Rehnquist; or even the themes OKerr develops in discussing some of the writing of a still sitting Justice in the Maryland v Shatzer (08-680) case


    ¶OKerr article linked is disdainful of the Scotus opinion in the Miranda area; yet, caveat lector, the linked February 25, 2010 scotusblog post is a copy of the identical article at professor Volokh*s site.

  28. JTMinIA says:

    bmaz –

    When Evan Perez writes “the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights” is he being accurate? I didn’t think anyone except the holder of a right could “waive” said right. When someone else “waives” one of your rights (especially without your knowledge and against your interests) then it isn’t a case of the right being “waived,” it’s a case of the right being taken away. Right? (as it were)

    – JTM

    • prostratedragon says:

      “Well, the attorney general is a Holder,” she said, stupidly.

      I suspect it somebody were challenged in person on that relevant point, a smirk and a smart-assed reply like that would be the result.

  29. seeker561 says:

    One need not be “read his rights’ in order to exercise those rights. Every parent should teach his or her children what those rights are and when they should be exercised.

    At the very least children should be taught not to talk to police (or other strangers) without their parents present.