The Washington Independent » miranda rights

FBI memo allows for abbreviated Miranda rights in suspected domestic terror cases

admin — Thu, 24 Mar 2011 16:50:03 +0000

The Wall Street Journal reports that the U.S. Department of Justice has decided to let the FBI keep domestic terror suspects in custody longer than the average criminal suspect without reading them their Miranda rights. The FBI memo is yet another move that shows the Obama administration keeping, institutionalizing and adding to Bush administration policies that went around Congress and formal criminal protocol in regard to terror suspects.

The Wall Street Journal:

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.

Matthew Miller, a Justice Department spokesman, said the memo ensures that “law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents.” He said “the threat posed by terrorist organizations and the nature of their attacks—which can include multiple accomplices and interconnected plots—creates fundamentally different public safety concerns than traditional criminal cases.”

Firedoglake’s Marcy Wheeler outlines why an FBI memo allowing for abbreviated Constitutionally-mandated Miranda rights flies in the face of Supreme Court rulings:

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.

The American Prospect’s Adam Serwer points out that Miranda rights don’t apply to interrogation rules, just what can be allowed as evidence in court.

So are Miranda rights being gutted here? I think that overstates what’s happening. Miranda does not govern interrogation. It governs the admissibility of evidence in court. The FBI can interrogate someone without giving them Miranda warnings, it just can’t use the information from that interrogation against them. The Supreme Court never stated that Miranda warnings were mandatory, just that statements would be inadmissible without them. So I’m not sure this actually changes anything with regards to defendant’s rights, but it certainly may make it harder for the FBI to convict terrorists by making fewer of the statements they get admissible.

Serwer also notes that this action by Obama’s DOJ is likely the product of kowtowing to Republicans that politicized Miranda rights in claiming offering terror suspects like Umar Farouk Abdulmutallab — the Christmas Day ’09 “underwear bomber” — such Constitutional rights squanders intelligence-gathering opportunities. In addition, Serwer contends, the move could be to avoid Congress from pressing for the Department of Defense to handle domestic terror cases rather than the FBI.

Republicans have attacked the administration for “giving” terror suspects constitutional rights they already have, and the administration is concerned about looking soft on terrorism. But because Republicans know this isn’t an actual problem, they rebuffed administration overtures to codify a public safety exception with legislation. But by by issuing this memo, the administration has conceded the point. While not solving an actual national security problem, this further erodes the administration’s argument that Miranda does not impede intelligence gathering.

[...]

A secondary question though, is whether by doing this–or rather, by leaking word of the memo–the administration is trying to hold off efforts by Republicans to mandate that all domestic terrorism cases be handled by the military by assuaging fears that the FBI isn’t making intelligence gathering first priority in interrogations.

During Graham-Kagan Discussion of Miranda, a Moment of Levity

Jimm Phillips — Tue, 29 Jun 2010 20:10:17 +0000

At the start of what became a serious line of questioning on Supreme Court nominee Elena Kagan’s view on how Miranda rights should be applied in terrorism-related arrests, Sen. Lindsey Graham (R-S.C.) injected a rare moment of humor into today’s confirmation hearing.

In preparing to discuss the failed Times Square and Christmas Day bombing attempts, Graham asked Kagan about her opinion on Christmas — and what she was doing on Christmas. As a chorus of laughter died down, Kagan gave a wry reply.

“You know, like all Jews, I was probably at a Chinese restaurant,” she said, prompting more laughter.

“That’s what Hanukkah and Christmas is all about,” Graham replied.

Update at 4:40 p.m.: As Judiciary Committee Chairman Patrick Leahy (D-Vt.) called a short recess just a few minutes ago, he said he enjoyed Kagan’s joke.

“I’m really enjoying the ethnic humor here,” he said.

Holder Struggles to Defend 9/11 Trial Decisions

Daphne Eviatar — Thu, 19 Nov 2009 11:00:33 +0000

Attorney General Eric Holder (WDCpix)

Attorney General Eric Holder surely knew he’d be facing a tough audience when he prepared to testify to the Senate Judiciary Committee on Wednesday. That may be why instead of delivering the written testimony he’d prepared, he focused his opening remarks on explaining his decision, announced last Friday, to try the alleged co-conspirators of the September 11, 2001 terrorist attacks in a New York federal court.

But the Attorney General also announced last week his parallel decision to try five other terror suspects in the newly reconsistituted military commissions just authorized by Congress and signed by the President. Instead of pacifying Republicans, however, it has instead opened up Holder and the Obama administration to harsh criticism from both sides of the aisle. That quickly became clear in the aggressive, even hostile questioning from Republicans yesterday, and repeated expressions of disappointment from some Democrats.

In attempting to explain his decision at the justice department oversight hearing on Wednesday, Holder said: “I am a prosecutor, and as a prosecutor my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case in the best forum. At the end of the day it was clear to me that the venue in which we are most likely to obtain justice for the American people is in federal court.”

Republicans, however, repeatedly cast the choice of a civilian trial as undermining the war on terror. “This is war,” said Sen. Jeff Sessions (R-Ala.), the ranking Republican on the committee. “I think the decision you’ve made to try these cases in federal court represents a policy and political decision.”

Holder denied that politics had anything to do with it, and confirmed that he, too, believes we are “at war with a vicious enemy.” Yet the decision to continue to characterize the struggle against terrorism as a war left Holder struggling even more to explain his decision to choose a civilian trial over a military one for the men he believes sparked the whole conflict.

“Prosecuting the 9/11 defendants in federal court does not represent some larger judgment about whether we are at war,” he said. But “We need not cower in the face of this enemy.”

“It’s not cowering in fear of terrorists to decide the best way for this case to be tried is to be tried by military commissions,” Sessions retorted. “You’ve indicated the military commissions can be used. I assume you believe a military commission can fairly and objectively try certain of these cases.”

Holder affirmed that they can. But Sen. John Cornyn (R-TX) used that to argue that Holder was exercising bad judgment, because the evidence against Khalid Sheikh Mohammed and his co-conspirators now could all be thrown out in a federal court because they weren’t read their Miranda rights when they were seized.

Graham, in his questioning, noted that using two different justice systems will confuse military officers who capture terror suspects in the future. “Under your decisions, the point of trial would not be known,” he said. “So what should the military do at the point of capture? Custodial interrogation rights and Miranda rights attach at that time. But they’re not normally used by the military. What do we tell our soldiers and commanders when they capture somebody about how to interrogate and when to interrogate?”

Any lawyer defending a terror suspect captured on the battlefield in federal court, Graham argued, would argue that “questioning of my client without Miranda warnings would be a violation of domestic law.”

Holder assured Graham that Miranda warnings aren’t usually necessary when the military arrests a combatant overseas, although he acknowledged that the decision is made on a case-by-case basis, and did not explain how those decisions are made.

Many Senate Democrats, meanwhile, although supporting the decision to try the 9-11 suspects in federal court, were equally disturbed by Holder’s decision to use military commissions to try other detainees.

“I commend you for your decision” to try the 9/11 suspects in federal court, said Sen. Russell Feingold (D-Wisc.) “But I remain skeptical of the decision to try five others in military commissions.” Feingold noted that more than 200 terror suspects have been prosecuted in federal court since September 11, 2001, including Zacarias Moussaoui, the so-called 20th hijacker, who was charged and convicted in federal court by the Bush administration, with no objection from Republicans. Now, “it’s disheartening to hear that people have so little faith in our system of justice,” said Feingold.

Sen. Sheldon Whitehouse (D-R.I.), a former U.S. Attorney, added that unlike the federal court system, military commissions are an uncertain system of justice, even with the recent congressional amendments that reauthorized them. Under President Bush, the commissions convicted only three people, which included one guilty plea, Whitehouse noted, adding that he had doubts about the new commissions “being able to contribute same kind of reliabity and resilience that federal courts have obtained through tens of thousands of cases.” “Even a perfect military commission still bears some kind of question,” he said. “They are still untested.”

The result is that their verdicts are likely to be appealed, which will only “lead to delay in the outcome of the proceedings,” said Dick Durbin (D-Ill.).

Sen. Patrick Leahy (D-Vt., the committee chair, echoed that worry. “The concern I have is that military commissions have repeatedly been overturned by the Supreme court and have very little precedent,” he said. By contrast, “our federal courts have 200 years of precedent.”

Petraeus: We Don’t Read Detainees Their Miranda Rights

Aaron Wiener — Thu, 11 Jun 2009 14:53:50 +0000

If you didn’t wade through the details of counterinsurgency strategy in Spencer’s liveblog of Gen. David Petraeus’ keynote speech this morning at the Center for a New American Security conference, you may have missed this interesting nugget: Petraeus tore down a Weekly Standard report that the FBI was reading Miranda rights to detainees captured in Afghanistan.

“The real rumor yesterday is whether our forces were reading Miranda rights to detainees and the answer to that is no,” Petraeus said today.

The Weekly Standard piece, published on the magazine’s Website yesterday, claimed that “the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee.”

The Republican in question was Rep. Mike Rogers of Michigan, who told the Standard:

The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters.

Rep. Pete Hoekstra (R-Mich.) then jumped into the fray:

When they mirandize a suspect, the first thing they do is warn them that they have the ‘right to remain silent.’ It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation–lawyering up.

I’m not sure where Rogers and co. got their information, but it seems safe to assume that Petraeus would be in the know here, and his denial is unambiguous.