Obama Wants 'Limited Flexibility' On Miranda

[midnight]

Source: Huffington Post

For the first time since news broke that the Obama Justice Department has used a "public safety exception" to effectively interrogate terrorist suspects before reading them their Miranda rights, the White House is elaborating on its legal preferences.

In his daily briefing on Tuesday, White House spokesman Robert Gibbs said the president is "interested" in "limited flexibility" with respect to laws governing how to question a suspected terrorist. This means granting interrogators, under controlled and moderated environments, the right to interrogate a suspect before reading him his or her Miranda rights.

The comments are the closest the White House has come to officially endorsing the use of the "public safety exception" -- which grants interrogators a window of time to interrogate a suspect (and admit the evidence) without reading Miranda warnings, under the rationale that the public's safety is at stake.

Gibbs stressed on several occasions that the president is still committed to the law establishing Miranda rights.

Read more: http://www.huffingtonpost.com/2010/05/11/obama-wants-limited-flexi_n_572190.html

---

Here is the slippery slope:

"The White House, as Talking Points Memo concluded, had found a "middle ground," between those who stand firm on the constitutionality of reading suspects Miranda rights and those who think the rights should be disposed of when it comes to alleged terrorists."

[aquart]

1. No. And Barry? You should be ashamed of yourself.

[Gormy Cuss]

30. +1

No exceptions, Mr. Obama. None.

[Zhade]

64. I seem to recall he talked about restoring the rule of law.

What a fucking sham this guy turned out to be.

[dflprincess]

73. That must be another of his opinions that have "evolved"

I wasn't entirely taken in during the campaign - but I did have a faint hope for better.

:banghead:

[tekisui]

2. Another sad decision.

[hayu_lol]

3. Miranda...

is for everybody. NO EXCEPTIONS.

[SusanaMontana41]

59. Exactly right.

Why is President Obama behaving as if he were an extension of the Cheney administration?

[midnight]

71. Beautifully simple.

[phleshdef]

33. Its sad to say you support a miranda exception that has existed for decades?

[tekisui]

34. It is sad to want to change the nature of its use.

The Quarles exception came from a cop asking a man that he had just arrested with an empty holster where his gun is. I was a public safety question.

Interrogating a alleged terrorist is not the same thing. They should be mirandized and then questioned.

Holder and Obama are setting themselves up to have confessions and evidence thrown out and convictions lost. Shame on them all.

[phleshdef]

41. The public safety exception applies where circumstances present a clear and present danger...

...the public's safety and the officers have reason to believe that the suspect has information that can end the emergency. I'm not sure how what the administration's suggested use of it varies from that.

[tekisui]

42. We'll see when confessions get tossed out of court.

If the question is: Is there another bomb? That would be fine.

If the question is: Who do you work for, how did you build the bomb? Did you set the bomb? That wouldn't be acceptable.

If an interrogation took place with many questions of any kind, that also would be violative of the exception.

[phleshdef]

44. There would be no benefit denying miranda rights if the matter was not an urgent "bomb" situation.

The thing about miranda rights in this case is you get a lawyer before being interrogated, which means you have to go through the miranda process first. That really only has an effect if its "need answers now or people will die" situation. So even if I was highly suspicious of the Obama administration trying to usurp more government power, I wouldn't see this as anything that really achieves that.

But you also have to consider that if they are wanting to extend the public safety exception, they are in fact going through the proper channels of law to do so. If they are asking for the law to be extended, thats fine by me. My problem was never the government seeking to change laws to accomodate fighting terrorism, my problem was the government just doing whatever the hell it pleased without paying any respect to existing laws, like the Bush administration did with wiretapping and torture. Like with the wiretapping, it wasn't illegal because they were spying on American citizens phone calls and such, it was illegal because they were doing it without following the proper channels to get a warrant, even though they could do so 72 hours after the fact. If the Obama administration seeks to change the way a law works using the proper democratic channels to do so and follows existing law in the meantime, I can't really criticize that.

[No Elephants]

50. You are mistaken about extending the law.

Miranda was a Constitutional decison of the SCOTUS. So was Quarles.

Congress cannot add Constitutional rights or eliminate them. (As to Miranda rights, specifically, please see the case cited in Reply #15, of which Obama is unquestionably cognizant.)

No matter what Congress does, either using the public safety exception would be constitutional or it wouldn't.

Your example of the warrant is not on point. A court is a proper channel for getting a warrant, indeed, the only channel. Congress is not the "proper democratic channel" when it comes to Constitutional rights. Court is the only way to do that, too.

IMO, Obama is asking Congress to extend the law for the same reason Clinton asked Congress to enact Don't ask, don't tell--namely, political cover.

[phleshdef]

54. Um, of course the court is the proper channel for getting the warrant.

You totally misunderstood what I was talking about. I said it doesn't bother me if the executive seeks changes for these kinds of laws, it bothers me when they just break the law instead. I never said that Congress was the last word on how that law gets changed either. I suggest you read my post instead of adding things to it that I never said to give you something to argue with.

[No Elephants]

60. Did not add anything to your post. And you are the one not understanding my post, not the other way

round.

Your post said tha Obama was going through the proper channels. I pointed out that he wasn't, per basic constitutional principles in general and the Dickerson case in particular. You may disagree with me, but I added nothing to your post, simply disagreed with it. You don't have to say whether Congress is the last word or not. It is not the proper channel for diminishing Constituional rights of suspects, period.

You now say, "it bothers me when they just break the law instead." This shows you did not understand my post--or Constitutional law. It doesn't matter what Congress says about this extension. What Congress says is irrelevant. If Obama believes it is Constitutionally correct, he should just do it. If he doesn't believe it is Constitutionally correct, he should not be asking Congress to pass what would be an unconstitutional law. And if it is Constitutionally incorrect, the law would not help anything--he'd still be violating the Constitution.

As far as a warrant, you used that as an example to support your point that Obama was going through the proper channels. I told you the example was not on point and I told you why. Again, not adding a thing to your post, simply disagreeing with it.

Maybe you should have look at the Dickerson case to which I referred you?

[Recursion]

47. I'm not sure you're getting the point

Police can -- always have been able to -- ask anyone any questions they want. The Miranda issues are about which answers can be used later as legal evidence against someone.

[tekisui]

53. I get that point,

Which is why I started with: We'll see when confessions get thrown out of court.

[No Elephants]

61. Reply # 42 is spot on in all respects.

[No Elephants]

51. Good analysis. But, do we doubt that the Roberts court is going to find

that withholding Miranda rights from terrorism suspects is unconstituional?

IMO, you are correct. It would be under the circumstances you describe. But, it's the frickin' Roberts Court--and Obama knows that as well as you and I do.

[ixion]

4. No. End this madness and restore the Rule of Law

Now.

[ShortnFiery]

5. American Crusade 2001+ is still going strong.

http://yorick.infinitejest.org:81/1/img/card-bill_of_rights.jpg

[rasputin1952]

6. An emphatic NO...

Do NOT mess with this, disaster waits in the wings...:grr:

[No Elephants]

66. It will be fine, if the Roberts Court extends the public safety exception. I think it probably will

I think Obama thinks it probably will.

Meanwhile, though, he seems to be asking Congress to do something it has no real power to do--namely, reduce the Miranda rights the Supreme Court has said suspects have.

[rasputin1952]

74. What bothers me is that historically...

every time the BoR's or the Constitution gets "tweaked" because of some perceived threat, citizens lose in dramatic fashion. The "War on Drugs" has had incredible consequences on the IV, V, VII and possibly the VIII Amendments....all with little to no effect on illegal drug use, except to make it more expensive, thereby increasing some criminal activity.

Crazy Joe Lieberman would drag us into our own Dark Age, w/the denial of Miranda...even though I don't see why Miranda should be denied to non-citizens here in the US, it is just a matter of time before it just vanishes from the scheme of things. It did not take long after the "Patriot Act" to have warrantless searches, wiretapping and mass collection of data w/o probable cause or a warrant.

I see no problem telling anyone detained, citizen or not, that they have the Right to remain silent, anything they say can and will be used against them in a court of law, and ensuring they have adequate representation if they cannot afford an attorney.

Most of these people that get caught sing like canaries anyway...:eyes:


In a very short time, if this "goes through", ( I don't think it will, but I'm fighting like hell against it anyway), it will be no time at all before average citizens are affected...and negatively.

[Blue_Tires]

7. i don't get it...how is NOT reading someone their rights supposed to help anything?

[Recursion]

27. Advice of right to counsel

A suspect may well not know he has a right to counsel.

Like I said below, the Miranda requirement doesn't prevent police from questioning people without lawyers and without advising them of their rights. It establishes significant hurdles to using the information obtained that way as evidence in court.

[Demeter]

43. A Government That Deceives

some of the people all of the time, all of the people some of the time, and itself most of all, if it thinks it has the right and responsibility to subvert the Constitution and 200+ years of legal precedent and all the blood sweat and tears, hopes, dreams and hard work and savings that went into making the country that Corporate Criminality is destroying on an hourly basis.

[Recursion]

46. Police have always been free to deceive suspects during questioning

Like, "your accomplice already said you did it." What they can't do is deceive a subject about their rights against testimony, self-incrimination, and access to counsel and then use the information they obtain in court.

[No Elephants]

52. I don't think Demeter was referring to the police.

[No Elephants]

65. When you tell them they have a legal right to remain silent, they may shut up.

If you tell them they have a right to counsel, court appointed, if they have no money, before they answer questions, they may shut up until they get counsel. And, once they get counsel, counsel may tell them to shut up. In all those events, you will not get information.

The public safety exception says you can, before Mirandizing, ask questions like, "Is a (or another) terrorist attackk happening, about to happen, or planned?" But, you probably cannot ask questions like "Why do you want to kill Americans?" Although, almost anything you find out about terrorists could arguably be said to lead to saving lives, directly or indirectly.

And, in between those extremes, you may have a lot of gray areas.

Please note: I am only trying to answer your question. I am not arguing for or against expanding the public safety exception. I do, however, believe that Obama may be asking Congress to pass a Constitutionally ineffective law. Worse, I'm sure he knows that.

[npk]

76. Think of it like this

Lets say the US arrests a terrorist for placing a bomb in Time Square. That bomb is found and defused. Lets say the terrorist has another bomb somewhere in the city, that could be a danger to the public safety of millions of citizens. This exception to the miranda warning would allow interrogators to question the terrorist without first explain that he has a right to remain silent, because the general welfare of citizens outweighs the suspects legal right to keep silent.

Just remember that the suspect is still presumed innocent in the eyes of the legal system, even with this exception to the miranda warning in place.

[2Design]

8. so it begins anew - the rise of the third reich started under bush n/t

[Coco2]

9. I wonder just what Constitution Obama studied and taught? n/t

[amandabeech]

39. The one that he thought was flawed.

Now, he's going to fix it by executive fiat, not by amendment.

[proudohioan]

10. Slippery slope #2.....

Defining "terrorist". Will the term "terrorist" be left open to interpretation? On a "case by case" basis? Who decides what constitutes an "act of terrorism"? Is the decision left up to police?

This is just too vague and subjective. If Miranda isn't going to be applied to everyone equally, we have made a huge step backward.


self-edit for spelling.

[havocmom]

78. EXACTLY! Who gets to define who does and doesn't have legal rights?

Patriot Act still on the books = ANYBODY could be denied legal rights on the whim (or agenda) of certain high office holders or their appointees.

NOBODY has rights so long as that is the case. NOBODY.

[Wizard777]

11. How do I they keep this from becoming like National Security letters.

It was passed to use against terrorists. Something outrageous like 80% of the National Security Letters that have been written were for drug cases and not terrorism.

I'm not ready to peg Obama as a Bush lite on this. Obama is far more articulate at forming and explaining his positions than Bush was. None of it involves Obama wanting to be the dictator to make running the government much easier for him. So I'll hear him out.

[Soylent Brice]

12. what the fuck...

[rug]

13. You may have the right to remain silent.

We'll let you know.

[QC]

14. Thank goodness a Republican didn't propose this

or DU's servers would have melted down by now.

But since it's our guy shitting on our liberties, meh....

[xsquid]

17. [phone] nt

[Blue_Tires]

29. Rudy was on Larry King last week pushing for it, iirc

[Jefferson23]

15. I don't like these ideas at all, yet, Holder must define what he wants

and the Congress will need to debate the measure. My concern is that with elections coming up, there is the possibility
these folks will not be up to the task nor careful about defining this "window of time."

The last thing we need is a knee jerk response to miranda rights so we can be kept "safe" from the boogey man.


Consider this from the OP:

The case Dickerson v. U.S., already limits Congress's ability to alter the content and power of the Miranda warning (which is a constitutional right, the court determined).

Nevertheless, Gibbs did not suggest that legislative alterations to Miranda and the public safety exception are out of bounds -- though he never explicitly or implicitly indicated that it would be needed either.

"Obviously," he said, "any change that would take place would have to be done legislatively." (end)


This is going to be interesting folks.

[placton]

16. Barack Baby

Another promise broken - about civil liberties again. Well, enjoy your retirement getting richer. No doubt all those Republican voters will replace those of us who hope there is a Dem primary against you, and will stay home when you run for a 4th Bush term.

[NBachers]

18. John McCain will be glad to hear this

[OnyxCollie]

19. Miranda rights, the Fourth Amendment,

Everything is flexible now.

The Constitution is just a "suggested serving" of democracy.

[jody]

20. I overestimated him again. n/t

[PurityOfEssence]

21. As always, he stands in the middle of the middle of the middle of the road

An Ultra-moderate to the marrow.

[Mari333]

22. its like slow torture watching him trash the constitution yet again

it was actually easier under Bush..at least you KNEW he would do it. this hurts more.

[IndianaGreen]

69. Bush was too stupid to know that was the Constitution he was wiping his ass with

Obama knows he is wiping his ass with the Constitution.

[Hell Hath No Fury]

23. Another disgusting move by O --

What a sad farce he is becoming. :(

[Akoto]

24. There should never be flexibility on Miranda, because ...

Not only is it wrong today, but it's a slippery slope tomorrow. What happens when they broaden the definition of terrorist, or otherwise decide (based upon this move) that other groups of people can be stripped of their Miranda Rights? Precedent can be a very dangerous thing for our future.

Everyone deserves the Miranda Rights. Not after they're pummeled by interrogators, but right at the start. If we are fighting these terrorists because we hold to superior values, as if often claimed, then we shouldn't compromise those values. That hands them a victory. Their goal isn't to destroy us - they know this is impossible, much though our MSM says otherwise - but to see our society change.

[Recursion]

25. Umm... they have that and have always had that

The police can always question anyone about anything to protect public safety. There are just hurdles to then using the information gained in a court of law.

[TomCADem]

26. Is The Public Safety Exception New? I Thought It Was Established Precedent

The public safety exception applies where circumstances present a clear and present danger to the public's safety and the officers have reason to believe that the suspect has information that can end the emergency. New York v. Quarles, 467 U.S. 649, 655 (1984).

[Recursion]

28. And even then, the information is difficult to get into court

As I read it, the point of the public safety exception is that the cops have judged that stopping the bomb (or whatever) now is more important than having the information you get to do that appear in court later.

In this case, they did it with a "clean room" technique (another interrogation team, later, advises the suspect of his rights and re-questions him).

[TomCADem]

31. How Far Have We Come, Under Bush, The Question Is How Much Torture We Can Inflict

Under Obama, we are debating the limits of the public safety exception while acknowledging that the suspect is a citizen and is entitled to representation.

I think that sometimes we romanticize the Republicans with wild comparisons between Bush and Obama.

[No Elephants]

62. The comparisons between Bush and Obama are not always all that wild.

In court cases, you usually can't find daylight between the position Bush's D of J took in the original case and the position Obama's D of J took on appeal. And if you can, it's because Obama's D of J went even further than Bush's.

As far as torture, we are still engaging in "extraordinary" rendition, last I knew, aka, "outsourcing torture," and there is as much talk about Bagram as there used to be about Gitmo. Amnesty International has complained.

Besides, Obama is the one who set the precedent that en entire administration would totally escape prosecution by the U.S.

And even Bush never asked to extend the public safety exception.

The legal business is upsetting because precedents, once set, can last a very long time.

I am not saying that there is never any difference between Bush and Obama. I am saying that sometimes, the romanticizing to which you refer is actually about the extent of the positive change that has occurred since Bush.

[tekisui]

36. THat is it.

Holder and Obama want to expanded the use to include interrogations, not just an immediate, "Where's the bomb?"

I would like to see a the questions that were asked prior to Miranda to see what 'public safety' was threatened.

[No Elephants]

55. Not the same thing. Reply # 42, above, nailed it.

If it were "established precedent," Obama would not be asking Congress to extend the public safety exception established in Quarles.

Of course, Congress can't extend it effectivvely. Only the SCOTUS can.

[phleshdef]

32. "Public Safety Exception" has applied to the reading of the Miranda rights for ages now.

I'm not even sure why Gibbs has to point out that the President favors an exception that all ready exists and has for some time. This means absolutely nothing.

[tekisui]

35. Right.

And, you would be the first to acknowledge if it 'meant anything', wouldn't you? :eyes:

[midnight]

45. phleshdef I think the focus is now on expanding the "Public Safety Exception"

"The discussions became public this week when presidential adviser David Axelrod told CNN that the focus is on expanding the "public safety exception that allows a delay in administering" Miranda rights. The question, Axelrod said, is "how elastic is that, and do we need to make any sort of adjustment to it?"

http://www.npr.org/templates/story/story.php?storyId=126759938

[No Elephants]

56. Pres. Obama wants an extension of the exception. Pls. see Reply ##s 55 and 42.

[X_Digger]

37. Oh Hell no.

We really don't need more "see, we can be tough on terra, too!" theater, when it comes at the expense of eroding the liberties that have been the bedrock we've operated on for 200+ years.

[xxqqqzme]

38. I am decidedly less than thrilled

'The White House...has found a middle ground'...

There is NO middle ground. Either you do it or you do not. There is no middle.

[Ter]

40. Obama would never support this on his own

I'm afraid someone else may have the final say. CIA?

[No Elephants]

67. De Nile sure ain't just a river in Egypt.

[Ter]

70. I believe in a Shadow Government

Stuff likes this makes me believe it further.

[No Elephants]

48. The public safety exception was established in a 1984 SCOTUS case, a 5-4

decision. Rehnquist (Reagan nominee) wrote the opinion. Justices Blackmun (Nixon nominee), Burger (Nixon nominee), Powell (Nixon nominee) and White (Kennedy nominee) were with him.

Dissenting were liberals Brennan, Marshall and Stevens and moderate O'Connor. (Of the four dissenters, only Marshall had been nominated by a Democrat.

New York v. Quarles - Significance, Miranda Warnings Inadequate, A Compelling Exception, Impact, Self-incrimination Clause http://law.jrank.org/pages/12963/New-York-v-Quarles.html#ixzz0nk0saUfv


IOW, President Obama now wants to EXTEND an exception that three Republican Justices in 1984 thought should not exist at all.

[DebbieCDC]

49. Bush 2.0

More of that wonderful change

[No Elephants]

57. I see Obama's first term as a melding of Clinton and Bush.

[The abyss]

75. Only one system

They all work for the machine. They don’t answer to the people

“We the people” are allowed to think there is a difference.

[JCMach1]

58. He looks like an idiot... there IS no middle ground to be had here

The Great Triangulator strikes again.

[No Elephants]

63. IMO, he looks bad for asking Congress to do something Congress has no power to do.

[IndianaGreen]

68. Tyranny by any other name, is still tyranny!

King Barack!

[midnight]

72. "For the administration to now talk about changing some fundamental protections that have

been in effect for a long time is very troubling."
- Mike German, former FBI agent now with the ACLU

http://www.npr.org/templates/story/story.php?storyId=126759938

[I Am So Me]

77. Different?

How exactly is this any different than Bush? I don't see any.