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Posted at 11:49 AM ET, 01/20/2011

The Miranda dodge

By Adam Serwer

Following the domestic apprehensions of suspects after several high profile attempts to commit acts of terrorism, Republicans managed to gin up political controversies over whether or not the suspects were read their Miranda rights. Justin Elliott at Salon reports that the Justice Department has issued new guidelines for when Miranda rights should be given in terrorism cases.

Yet despite promising the "most open and transparent administration in history," Obama's Justice Department is refusing to publicly reveal what those guidelines are.

The issue of Miranda rights is something of a perfect storm for Republicans, because it allows them to combine an erroneous, xenophobic reading of the Constitution with fearmongering over Islamic terrorism. Following the alleged underwear bombing by Nigerian Umar Abdulmutallab, Republicans suggested that he should not have been read his Miranda rights because he was not an American citizen. But anyone accused of a crime on American soil has constitutional rights, because the Constitution isn't just about what rights individuals have, but about limiting the exercise of arbitrary power by the government. Even Justice Antonin Scalia, dissenting in the Boumediene case that extended habeas rights to Gitmo detainees, acknowledged that aliens within the territorial jurisdiction of the United States have due process rights.

The other argument was that informing a terrorist of his or her rights would interfere with intelligence collection, suggesting that Abdulmutallab ceased talking because he was read his Miranda rights. But as CIA and FBI counterterrorism veteran Phil Mudd has written, a terrorist's "motives for talking (or not) are not driven by Miranda." Indeed, Abdulmutallab had ceased talking prior to being read his rights -- and Miranda only governs what material can be used in court, not information that might be useful as intelligence.

Later, when would-be Times Square bomber Faisal Shahzad was arrested, interrogators invoked the "public safety exception" to the Miranda warnings, which allows interrogators to delay reading a suspect his or her rights if there is an imminent danger. But it wouldn't have mattered either way -- Shahzad was cooperating, and he even waived his right to go before a judge. 

Nevertheless, Attorney General Eric Holder suggested Congress work on a new law to "modify" the public safety exception, but Republicans declined. Fearmongering over Miranda is simply too useful politically, and since it has no impact on whether or not a suspected terrorist is willing to talk, there's no real urgency to change it. 

Whatever the new guidelines on the use of the public safety exception are, they're likely more a solution to a political problem than a security problem. The administration doesn't want to get caught in another political firestorm because it obeys the law even when terrorism is involved. In the process, they're allowing Republicans to exploit fears about terrorism to chip away at protections against self-incrimination. Republicans hate Miranda because some simply don't believe in the presumption of innocence, particularly in cases involving Islamic terrorism. As Reagan-Era Attorney General Edwin Meese III once put it, "If a person is innocent of a crime, then he is not a suspect."

Miranda came to be because Jim Crow cops in the South were beating false confessions out of black suspects. So there's something ominous about modifying Miranda only a few years after a previous administration approved torturous interrogations of individuals suspected of terrorism. At the very least, the administration should be making public what the new procedures are.

By Adam Serwer  | January 20, 2011; 11:49 AM ET
Categories:  Foreign policy and national security  
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Next: Steve Cohen: I regret that Goebbels crack created "distraction," but Republicans are still liars

Comments

And don't forget the number of terrorist prosecutions in the U.S. through our Federal Court system you highlighted some time ago Greg which this person graphed out of sheer boredom. :)

http://liberaldefenderoffreedom.blogspot.com/2010/03/terror-prosecutions-in-us.html

Posted by: mikefromArlington | January 20, 2011 11:57 AM | Report abuse

It is refreshing to find history vindicating the Bush doctrine... even as Obama emulates it in Afghanistan.

So why isn’t billionaire progressive George Soros financing any unhinged Leftist rent-a-mob rallies against ObaMao's summary execution of (un-Mirandized!) civilians by Reaper drone airstrikes in Pakistan?

Afterall, Obama’s targeting tactics are clearly more "violent" than Bush’s post-9/11 moistening of KSM, et.al.

Obama’s policy to use Reaper drones to target (un-Mirandized!) civilians has increased markedly without a peep. Get busy, Leftists.

Rev. Wright should burn a Koran every day until Obama either releases his birth certificate or ends his Reaper drone madness.

Rage against the machine, Adam!

Posted by: KaddafiDelendaEst | January 20, 2011 12:18 PM | Report abuse

THIS ISSUE was settled in the 1980s, with a Supreme Court decision


For some reason, Obama and the democrats tried to drum up this as an issue when Bush was President - either ignoring the Supreme Court decision, or failing to look it up.


Obama was probably doing cocaine when the Supreme Court settled this issue - and the idea of holding back questioning a terrroist is insane.

Al Queda has a history of multi-plane attacks.

Unfortunately, the democrats have to be reminded of that - if one Al Queda member is found in Detroit on a plane with a bomb, HE MUST BE QUESTIONED IMMEDIATELY TO SEE IF THERE ARE OTHER BOMBS ON OTHER PLANES.


There is little to discuss with the liberals here.

This is just another issue in which the liberals ignore reality - and please it is time for this childish behavior from the liberals to stop.


Case closed.


.

Posted by: RainForestRising | January 20, 2011 12:22 PM | Report abuse

OT but Obama's even got a net positive from Republicans on if he'll do a better job in his next two years than he did in the last two years.

http://sas-origin.onstreammedia.com/origin/gallupinc/GallupSpaces/Production/Cms/POLL/6a8abpjysk2gtgr7r_f15g.gif

Posted by: mikefromArlington | January 20, 2011 12:25 PM | Report abuse

Even the case when asked specifically about the economy.

http://sas-origin.onstreammedia.com/origin/gallupinc/GallupSpaces/Production/Cms/POLL/7b8uifok3uarzhekss4m0w.gif

The entire poll is worth reading to be honest.

http://www.gallup.com/poll/145694/Americans-Optimistic-Not-Obama-Economy.aspx

Posted by: mikefromArlington | January 20, 2011 12:26 PM | Report abuse

Four points:

1. "Miranda came to be because Jim Crow cops in the South were beating false confessions out of black suspects. "

I didn't see anything in the Wikipedia article cited about Jim Crow, the South, or black suspects. Miranda involved a hispanic American arrested in Arizona for rape.

2. "Republicans suggested that he should not have been read his Miranda rights because he was not an American citizen. "

You don't address the other main argument against reading the Miranda rights, namely that Umar Abdulmutallab and Faisal Shahzad should not be treated as criminals but rather as belligerents in an ongoing armed conflict (authorized by the United States Congress) between the United States & Al Queda.

3. "Republicans hate Miranda because some simply don't believe in the presumption of innocence". No, Republicans hate Miranda because the Exclusionary rule is a judge made remedy to address the problems of self incrimination and illegal searches that has no basis in the actual wording of the Constitution or the Bill of Rights. The main Republican issue is with the suppression of valid evidence in determining guilt or innocence, not with the reading of the Miranda rights themselves.

http://en.wikipedia.org/wiki/Exclusionary_rule

See also this article from Slate:

"It Matters Not How You Get It"
http://www.slate.com/id/2275545/

4. "Justin Elliott at Salon reports that the Justice Department has issued new guidelines for when Miranda rights should be given in terrorism cases.

Yet despite promising the "most open and transparent administration in history," Obama's Justice Department is refusing to publicly reveal what those guidelines are."

This sounds like something straight out of the Bush administration that liberals would normally be denouncing the President for. However it appears that your point here is that it's not really Obama's fault that he doesn't stand up for civil liberties when his administration does something like this, the big, bad Republicans made him do it.

"Whatever the new guidelines on the use of the public safety exception are, they're likely more a solution to a political problem than a security problem. The administration doesn't want to get caught in another political firestorm because it obeys the law even when terrorism is involved. In the process, they're allowing Republicans to exploit fears about terrorism to chip away at protections against self-incrimination. "

The other explanation is that Obama has decided that most of the Bush Administration's positions in the "War on Terror", as they had evolved to by the end of his second term are fundamentally correct. As Glenn Greenwald puts it:

"Obama has won the War on Terror debate -- for the American Right. "

http://www.salon.com/news/opinion/glenn_greenwald/2011/01/18/cheney/index.html

Posted by: jnc4p | January 20, 2011 12:28 PM | Report abuse

"but it is also important for our long-term security to send a message to the world that we will lead not just with our military might but we are going to lead with our values and our ideals. That we are not a nation that gives away our civil liberties simply because we’re scared. We’re always at our worst when we’re fearful. Fear is a bad counsel and I want to operate out of hope and out of faith."

I guess ideals are just for the campaign.

Posted by: NoVAHockey | January 20, 2011 12:29 PM | Report abuse

What's interesting if you compare Obama to Reagan at the Gallup site is Reagan seemed to take a big hit during the mid terms while Obama appeared to go in the opposite direction.

Posted by: mikefromArlington | January 20, 2011 12:32 PM | Report abuse

Oh noes! Another Obama Doctrine* success:

AFP: US strike 'kills five militants in NW Pakistan'
http://www.google.com/hostednews/afp/article/ALeqM5hjwh98dulsiyXK_rxyu7zkPR--qw?docId=CNG.bcacce5d757f65ee2ea85771101c036f.931

MIRANSHAH, Pakistan — A US drone attacked a compound in northwest Pakistan's tribal area on Tuesday, killing five militants, security officials said.

*Miranda-despiser-in-Chief*

Posted by: KaddafiDelendaEst | January 20, 2011 12:32 PM | Report abuse

Actually, Bush's doctrine for Afghanistan was to ignore it until it got out of control, just like the economy, unemployment, Fannie and Freddie, the SEC, Minerals and Management division of Interior, etc. etc. etc.

Posted by: mikefromArlington | January 20, 2011 12:37 PM | Report abuse

@NoVAHockey ""but it is also important for our long-term security to send a message to the world that we will lead not just with our military might but we are going to lead with our values and our ideals. That we are not a nation that gives away our civil liberties simply because we’re scared. We’re always at our worst when we’re fearful. Fear is a bad counsel and I want to operate out of hope and out of faith."

I guess ideals are just for the campaign."

Correct. And to bash Republicans with.

Posted by: jnc4p | January 20, 2011 12:38 PM | Report abuse

When is billionaire progressive George Soros financing the unhinged Leftist rent-a-mob rally against ObaMao’s summary execution of three (un-Mirandized!) Somali teens at sea?

Afterall, that tactic was clearly more Miranda-shredding than our patriotic moistening of KSM, et.al.

The two year anniversary of Obama’s high seas shooting spree has already passed. Get busy, Adam.

Rage against the Miranda-shredder, progressives!

Posted by: KaddafiDelendaEst | January 20, 2011 12:54 PM | Report abuse

Liam will love this. Steve Cohen is out with a new statement that isn't budging from his core charge about the GOP:

http://voices.washingtonpost.com/plum-line/2011/01/steve_cohen_i_regret_creating.html

Posted by: Greg Sargent | January 20, 2011 12:54 PM | Report abuse

Errata: The 2 year anniversary of Obama’s high seas shooting spree is this April.

Get busy, progressives!

Posted by: KaddafiDelendaEst | January 20, 2011 12:56 PM | Report abuse

Greg,
Miranda had nothing to do with beating blacks in the racist south. It was a hispanic man in Arizona that gave confession (and I don't believe it was coerced) without being told of his right to remain silent. Sorry, it wasn't about racist republicans wanting to beat black men into confessing false crimes.

Posted by: Bailers | January 20, 2011 1:01 PM | Report abuse

I wonder what proof of this assertion Mr Serwer can produce:
=============
Nevertheless, Attorney General Eric Holder suggested Congress work on a new law to "modify" the public safety exception, but Republicans declined. Fearmongering over Miranda is simply too useful politically, and since it has no impact on whether or not a suspected terrorist is willing to talk, there's no real urgency to change it.

=======================

anytime one gets into the realm of speculation about motive the ice gets thin quickly. Here Mr Serwer seems to have performed the vulcan mind meld with the entire Republican caucus. I doubt even Mr Spock, on his best day, could perform such a feat.

the simple fact is taht Mr Serwer can't prove his contention. But it is nice to slam the opposition, even in the absence of facts. That, after all, is what liberals do. Just ask Liam-still.

Posted by: skipsailing28 | January 20, 2011 1:15 PM | Report abuse

BREAKING: Khalid Sheik Mohammed killed U.S. journalist Daniel Pearl, report confirms
http://www.washingtonpost.com/wp-dyn/content/article/2011/01/20/AR2011012000057.html?hpid=topnews

"According to the new report, which was prepared by faculty members and students at Georgetown University, U.S. officials have concluded that vascular technology, or vein matching, shows that the hand of the unseen man who killed Pearl on video is that of Mohammed."

Is it OK to waterboard him again, yet?

Just for fun this time.

Posted by: KaddafiDelendaEst | January 20, 2011 1:18 PM | Report abuse

"Greg,
Miranda had nothing to do with beating blacks in the racist south. It was a hispanic man in Arizona that gave confession (and I don't believe it was coerced) without being told of his right to remain silent. Sorry, it wasn't about racist republicans wanting to beat black men into confessing false crimes."


Actually they were racist Democrats. The Republican party didn't sell out with the "Southern Strategy" until after Miranda.

Posted by: dont_remember | January 20, 2011 1:52 PM | Report abuse

Since one of the far-right, extremist talking points is that "terrorists hate us for our freedoms", then those blithering Bush Jr/Cheney lackeys commenting on this story are enthusiastically supporting, and surrendering to, al-Qaeda by insisting on shredding our rights.

Good job there, lil' troopers.

Posted by: kingcranky | January 20, 2011 2:58 PM | Report abuse

"Greg, Miranda had nothing to do with beating blacks in the racist south. It was a hispanic man in Arizona that gave confession (and I don't believe it was coerced) without being told of his right to remain silent. Sorry, it wasn't about racist republicans wanting to beat black men into confessing false crimes. Posted by: Bailers"

Eh, yes and no. The exclusionary rule was written to deter beating confessions out of "suspects" and other police violations of basic civil rights, and blacks were, as usual, in proportions well above their proportion in the general population likely to be the ones whose confessions were so encouraged. Miranda was the next step: to deter beating confessions out of suspects or otherwise getting confessions that were not particularly voluntary the Court, using Miranda, declared that all persons should be immediately read their rights upon arrest. That distressed republicans because it obviously made getting specious confessions somewhat harder.

Of course the Miranda Warnings immediately became the de-rigoure finale in cop shows, and quickly became the dramatic signature of many series, where the lead carachter tells his sidekick or assistant or some cop on the scene, "read him his rights." In no time this became so set in dramatic convention that foreign movies set in the U.S. were doing it. The original Miranda decision gave Congress the incentive to replace the Court's formulation with something else, but Congress never bothered. Police Forceshave become so accustomed to it that when the Republicans triedto force the Supreme Court to act a few years ago the Police filed friend of the court briefs in favor of leaving Miranda as it is.

Republicans primarily don't like Miranda because they lost on it at the start, and that violates the first principle of republican policy, "No cause is ever over until the republican Side prevails."

They keep losing and that just makes em fight harder. Since they have really had their final day in Court, as the last SCOTUS ruling essentially says that Miranda is an established principle in American Jurisprudence AND indelibly ingrained in he World's understanding of that jurisprudence.

Miranda is truly the unchangeable law of the land, and Republicans are mad about it.

Posted by: ceflynline | January 20, 2011 7:09 PM | Report abuse

Suggesting waterboarding someone for fun is beyond pathological...its a downright medieval activity, what KaddafiDelendaEst accuses Muslims of indulging in...irony and hypocrisy have no meaning for some...

Posted by: srw3 | January 20, 2011 11:04 PM | Report abuse

@srw3: Fantasizing about beheading conservatives for fun is beyond pathological-- its "the highest form of patriotism" (what Leftists accuse conservatives of indulging).
http://www.lookingattheleft.com/2008/10/festival-of-obama/

The delicious irony is lost on Leftist hypocrits.

Q: Is it OK to Reaper drone KSM yet?
http://hotair.com/archives/2011/01/17/cheney-to-obama-glad-to-see-youve-come-around-to-our-position-on-counterterrorism/

Posted by: KaddafiDelendaEst | January 21, 2011 9:14 AM | Report abuse

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