Monday, May 10, 2010

Obama Administration Wants to Limit Miranda - But Can It?

The New York Times (also - the Washington Post) reports that Attorney General Eric Holder will seek a new law permitting the government to decline from Mirandizing terrorism suspects. Specifically, the New York Times says that:
The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.

Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.
He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions.
Conservatives have blasted interrogators for informing terrorism suspects of their constitutional right not to speak to law enforcement officers and to secure legal counsel.. Conservatives, however, have a long history opposing Miranda.

Miranda Is a Constitutional Requirement
In 2000, the Supreme Court rejected the Justice Department's argument that the Miranda requirement was not a constitutional rule. Only two justices dissented.  Former Chief Justice Rehnquist -- a staunch conservative -- authored the ruling.  Given the Court's ruling, it is unclear how Congress can alter and set limits to Miranda by statute. Civil libertarians quoted by the New York Times agree with this assertion:
Still, Anthony D. Romero, executive director of the American Civil Liberties Union, said Congress had no authority to “chip away” at the Miranda ruling because it was based in the Constitution. He predicted that any effort to carve a broader exception would be vigorously contested.
“The irony is that this administration supposedly stands for the rule of law and the restoration of America’s legal standing,” he said. And Virginia E. Sloan, president of the bipartisan Constitution Project, said the existing public safety exception to Miranda seemed to be working, so there was no need to erode constitutional protections in ways that could later be expanded to other kinds of criminal suspects.
“It makes good political theater,” she said, “but we need to have a clear problem that we are addressing and a clear justification for any change. I haven’t seen that yet.”
The Court could, however, validate legislative guidelines if Congress acts upon Holder's recommendation.


Josh Dowlut said...

If you create a charge and a class of person for which rights do not apply, all the government needs to do is make that charge and count the person as part of the class without rights and they can railroad anyone they wish.

Darren Lenard Hutchinson said...

Josh: Congress cannot alter a constitutional rule.

Angela said...

This is infuriating. Ginny Sloan is correct that there is already a public safely exception (NY v. Quarles). The reality is that there are already a number of post-Miranda cases that weaken the constitutional rule. And the irony of all of this is that Miranda has rarely stopped suspects from talking to law enforcement officers! That's why cops don't mind it at all. Even the suspected terrorists have talked after they were arrested. This is so unnecessary and disappointing.

Mark P. Kessinger said...

The issue that no pundit anywhere seems to be addressing is this: the only thing the Miranda decision does is to provide a mechanism by which the courts assure that an accused person has been informed of his/her rights under the Constitution. The reading of the Miranda advisory to a suspect, however, is not some sort of legal trigger that confers rights to a suspect which the suspect did not previously possess. The suspect is already in full possession of his/her Constitutional rights from the moment that suspect is arrested. The Miranda warning is simply a standardized way to make sure that suspect has been informed of those rights. In the case of the would-be Times Square bomber, he had very recently gone through the naturalization process, part of which involves studying the Constitution and Bill of Rights, and thus would have been well aware of his rights from the outset -- more aware, in all likelihood, than many native-born Americans. So, realistically, what does a move like this accomplish?

The most disgusting thing about all this is that the President and the Attorney General are fully aware of all this, yet nevertheless use this bit of posturing in order to try to mollify critics from the right. I would hope, by now, they would have realized that there is no mollifying those on the right because their objections, by and large, are not principled objections in the least; they are nothing more than cheap political shots taken in an effort to undermine the other party politically, or to gain a few points for themselves. I was thus hoping (against hope, apparently) that on this issue the Obama Administration would show some real leadership by standing firm against the all too predictable reactionary forces on the hard right.

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