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

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.

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.

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