Holder Suggests Terrorism Exception to Miranda
[Guest post by DRJ]
Attorney General Eric H. Holder, Jr., believes Congress should consider legislating a terrorism exception to Miranda:
“Attorney General Eric Holder said that Congress should “give serious consideration” to updating the Miranda warning which requires law enforcement officials to inform suspects of their rights – including the right to remain silent.
In an interview on “This Week,” Holder said that the U.S. needs to exam whether the current rules regarding Miranda warnings give law enforcement agents the “necessary flexibility” when dealing with terrorism cases.
“If we are going to have a system that is capable of dealing, in a public safety context, with this new threat,” Holder said, “I think we have to give serious consideration to at least modifying that public safety exception” of Miranda warnings, which allows law enforcement agents to ask suspects about impending threats before reading them their rights.”
Surprised? I’m not.
— DRJ
Link is no good unless one has permission to preview drafts.
Machinist (9780ec) — 5/9/2010 @ 6:25 pmI lack permission, also.
ManlyDad (060305) — 5/9/2010 @ 6:29 pmCongress can carve an exception to the Exclusionary Rule. The Supreme Court has never claimed the rule to be a right, just a rule of evidence, entirely within the power of Congress to amend.
But I would hate to see the substance of Miranda-Escobedo diluted. As I have said before, the warnings and rights existed before the decisions came down. It was the conscience of America and not the Constitution that gave us the decisions.
nk (db4a41) — 5/9/2010 @ 6:36 pm““If we are going to have a system that is capable of dealing, in a public safety context, with this new threat,” Holder said”
This threat did not exist under prior administrations, Holder said, or at least we preferred to pretend that it did not while we lambasted our opposition for shredding the Constitution.
daleyrocks (1d0d98) — 5/9/2010 @ 6:57 pmWhat Holder wants is to have military tribunals or their equivalent without admitting it. It’s just like these guys, including Holder, saying that if KSM is tried in federal court and acquitted, they’ll still execute him.
They used to call those show trials when Stalin was holding them.
Mike K (2cf494) — 5/9/2010 @ 7:08 pmCan you imagine the uproar if John Ashcroft had asked for this?
Steven Den Beste (99cfa1) — 5/9/2010 @ 7:09 pmAshcroft was a stand-up guy who got sick of taking orders from a doofus. And we got AG AG.
nk (db4a41) — 5/9/2010 @ 7:13 pmJanet Napolitano is on a stake out of a right-wing geriatric extremist Tea Party group opposed to ObamaCare and could not be reached for comment.
daleyrocks (1d0d98) — 5/9/2010 @ 7:15 pmMachinist and Manly Dad,
I fixed it but it’s not worth looking at. I was being a smart-aleck as if I saw this coming, but I’m not that smart and it was a tacky thing to do. In other words, Never Mind.
DRJ (d43dcd) — 5/9/2010 @ 7:16 pmMaybe what he wants is to conduct criminal trials with sloppy versions of military tribunal rules (and probably vice-versa if the opportunity arises.) Look closely at who gets to administer the new rules and for what reasons.
htom (412a17) — 5/9/2010 @ 7:18 pmhttp://hotairpundit.blogspot.com/2010/05/david-gregory-how-does-shahzad-get.html
ian cormac (042eb8) — 5/9/2010 @ 7:18 pmAs much as I respect and admire Ashcroft, I resent him for leaving the AG’s office, in the sense that he should have stayed there because we needed somebody like him as much as the going got tough for him with the doofus in the White House.
nk (db4a41) — 5/9/2010 @ 7:19 pmDidn’t “Doofus” pick Ashcroft first? And while I’m sure there were many reasons for Ashcroft’s resignation, I think his health was a big factor.
DRJ (d43dcd) — 5/9/2010 @ 7:19 pmas much = no matter how much
nk (db4a41) — 5/9/2010 @ 7:21 pmI won’t pursue the point. But Ashcroft is a guy I like.
nk (db4a41) — 5/9/2010 @ 7:28 pmI like him, too, and apparently Bush did as well since Ashcroft was his first choice. Doesn’t Bush get some credit for picking Ashcroft despite the Democrats’ tremendous opposition to his choice?
DRJ (d43dcd) — 5/9/2010 @ 7:31 pm#9 DRJ:
Would that the rest of us were so restrained. At your tackiest, I think I would rather you in charge than Holder at DOJ. (Hmm, I can see the bumperstickers now: DRJ at DOJ!)
In any case, Holder is squirming to find a way to do what the O!ne said he would not. Like Mike K said, the DOJ is beginning to resemble the Soviet Prosecutor General’s Office more and more.
EW1(SG) (edc268) — 5/9/2010 @ 7:37 pmThanks a bunch, EW1(SG).
DRJ (d43dcd) — 5/9/2010 @ 7:40 pmGetting back to the Miranda issue, I don’t think anyone outside the Obama Administration knows how long Shahzad was questioned before being read his Miranda warnings. Nor do I think anyone knows if the High Value Detainee Interrogation Group was consulted or involved.
However, the Obama Administration claims the interrogation of Fasial Shahzad went well and they obtained good information, even after he was read his Miranda rights. So why do they need a Miranda exception?
It sounds like something didn’t go that well, or they learned they need guidelines for the future, or the Public Safety Exception doesn’t work as well as they claimed.
DRJ (d43dcd) — 5/9/2010 @ 7:43 pmDoesn’t Bush get some credit for picking Ashcroft despite the Democrats’ tremendous opposition to his choice?
Comment by DRJ — 5/9/2010 @ 7:31 pm
Not only Democrats. There are self-serving weasels in the GOP too. Ashcroft was a man of honor and ability who served his country well when he could have wished he was somewhere else.
nk (db4a41) — 5/9/2010 @ 7:47 pmWe agree on AG AG, too.
DRJ (d43dcd) — 5/9/2010 @ 7:50 pm“After being taken off his Dubai-bound flight shortly before it was due to leave the gate”
DRJ – The above is from your Newsweek link. I may be confused, but I thought the plane was actually taxiing and the recording circulating around the intartubes of the conversation between the tower and the cockpit tells the pilot to return to the ramp.
daleyrocks (1d0d98) — 5/9/2010 @ 7:51 pm“So why do they need a Miranda exception?”
DRJ – Why indeed? To deal with the NEW THREAT, exactly as Holder said. D’oh.
Why would you doubt him?
Rich layers of chewy nougaty nuance.
daleyrocks (1d0d98) — 5/9/2010 @ 7:57 pmdaleyrocks,
I didn’t notice that (you mean I’m supposed to read my links?!!), but see this Politico post that has audio of the tower telling the plane to return, with an Update that “while the flight did near takeoff with Shahzad aboard, he had been removed by the time this exchange occurred.”
DRJ (d43dcd) — 5/9/2010 @ 8:05 pmDHS Secretary Janet Napalitano was front and center early on with the Times Square bombing and said some typically stupid things. She’s regularly quoted and interviewed on the BP situation, and she just finally toured flooded Nashville. It’s starting to feel like this incompetent woman in an appointed and fairly newly created cabinet post is running the damn country–(or not, but you know what I mean.) This cabinet post just has way too much power and responsibility for my taste especially for an unelected position. It’s as if she’s become an assistant president/operations manager so he can go play golf and give speeches while someone else deals with the messes, and gets all the blame and scrutiny–not BO.
elissa (7c69ad) — 5/9/2010 @ 8:06 pmdaleyrocks,
I think he was taken off the plane before it left the gate, the plane was then allowed to leave. After it began to taxi, they decided that leaving onboard and not inspecting the luggage of a last-minute, one-way ticketed, bomb-making, terror suspect might be unwise and ordered the plane to return. I believe that’s the recording that made the rounds.
Stashiu3 (44da70) — 5/9/2010 @ 8:09 pmThanks Stashiu3 – I know I wasn’t dreaming about the tower to cockpit conversation about returning to the gate.
daleyrocks (1d0d98) — 5/9/2010 @ 8:24 pmThank you as well DRJ.
daleyrocks (1d0d98) — 5/9/2010 @ 8:25 pmelissa – Maybe Obama can carve up Napolitano’s responsibilities between a few Tsars and avoid any confirmation issues as well as reporting responsibilities to Congress. Shred baby shred!
daleyrocks (1d0d98) — 5/9/2010 @ 8:28 pmI guess maybe I’m too hard to please Daley, but that more czars idea somehow doesn’t really appeal to me either.
elissa (7c69ad) — 5/9/2010 @ 8:32 pmelissa – Tsars would be the Chicago Way!
daleyrocks (1d0d98) — 5/9/2010 @ 8:34 pmThese people have no principles at all. It is what I despise about them the most, they don’t believe in anything really. Just whatever line allows them to demonize their political opponents of the moment.
SPQR (26be8b) — 5/9/2010 @ 9:08 pm#32 SPQR:
I think some of them honestly believe the pabulum created and disseminated by the International Communist Movement about how everything would be all sweetness and light, once the proletarian revolution displaced the forces of evil capitalism, or something like that anyway.
And in that sense, they are very principled, with the end being the absolute justification of the means to it; and the models of the very successful socialist states like Cuba and so on to follow.
And no irony intended, some of these folks actually believe that Cuba and North Korea, et al have been successful at creating Worker’s Paradises.
EW1(SG) (edc268) — 5/9/2010 @ 9:22 pm“some of these folks actually believe that Cuba and North Korea, et al have been successful at creating Worker’s Paradises.”
EW1(SG) – Some of them are campaigning alongside Tommy Chong in Pennsylvania.
daleyrocks (1d0d98) — 5/9/2010 @ 10:16 pmelissa, I’m stealing 25. thanks
BradnSA (980254) — 5/9/2010 @ 11:46 pmI can’t believe he actually made such a “suggestion” — for the reason that it’s legally nonsense.
Miranda is enforced through the exclusionary rule. That is a rule created in the Supreme Court case law, by which the Court held that otherwise relevant evidence would be excluded from presentation at trial if it was obtained in a manner which violated the rights of the accused.
Congress didn’t create the exclusionary rule, and Congress can’t amend it. The rule was created by the Judicial Branch, for application by the Judicial Branch. Congress can pass all the laws it wants on the subject, and if the Supreme Court directs the lower courts to ignore those laws because the Court will not participate in what it deems unconstitutional practices as part of the criminal justice system, Congress is going to lose.
shipwreckedcrew (436eab) — 5/10/2010 @ 2:14 amI suppose that the leftists will be calling Holder a fascist?
JD (5e5cad) — 5/10/2010 @ 7:37 amShahzad, Abdulmutallab, even Hassan fall under a different category not covered by Miranda, ‘unlawful
ian cormac (042eb8) — 5/10/2010 @ 7:40 amenemy combatant’
Of course the Obama administration likes this, since they get to define who is a terrorist. Right-to-Lifers, veterans, tax protesters, abortion Dr. killers. But muslim men “acting alone” are not terrorists.
Miranda needs reform, but only for citizens, including citizens like this muslim bozo. But non-citizens caught outside of the US? They deserve less.
[note: fished from spam filter. –Stashiu]
Smarty (eed5d4) — 5/10/2010 @ 7:46 amComment by shipwreckedcrew — 5/10/2010 @ 2:14 am
And if Congress and the States pass a Constitutional Amendment dealing with Miranda?
AD - RtR/OS! (321c7a) — 5/10/2010 @ 11:51 amAnd, of course, there is always the Mahoney Rule:
“You have the right to remain silent. The right to a court-appointed attorney.
AD - RtR/OS! (321c7a) — 5/10/2010 @ 11:57 amYou have the right to sing the blues. You have the right to cable TV. You have the right to sublet.
You have the right to paint the walls. No loud colors.”
see, this is exactly one of my major criticism of treating this as a criminal matter. when you make the criminal law take on an issue it is not equipped for, you distort that law.
Treat it as war, and f— miranda. if you don’t have the gonads to waterboard, then at least make them listen to the dixie chicks 24/7.
A.W. (e7d72e) — 5/10/2010 @ 12:52 pmshipwreckedcrew:
It may not impact the criminal cases but wouldn’t such legislation insulate DOJ officials and federal LEOs from claims they acted illegally and should be prosecuted for civil rights violations?
Smarty:
That bothers me, too. Who gets to decide which suspects are terrorists?
DRJ (d43dcd) — 5/10/2010 @ 12:58 pmWhether Congress or the Supreme Court is the ultimate authority on federal rules of evidence … has that ever been decided? As for the exclusionary rule, in particular, what I said came from Chief Justice Warren Burger. I did not make it up. Concededly, it was in a concurrence not a decision.
And, BTW, do you think either Congress or the Supreme Court want such a showdown?
nk (db4a41) — 5/10/2010 @ 1:31 pmCongress is charged with writing the laws, the President is charged that they be faithfully executed, and the Judiciary is charged with ensuring that controversies shall be determined with respect to the laws as written by Congress.
AD - RtR/OS! (321c7a) — 5/10/2010 @ 1:45 pmI don’t think it has been decided.
DRJ (d43dcd) — 5/10/2010 @ 1:46 pm…and furthermore, they are Judges, not Gods –
AD - RtR/OS! (321c7a) — 5/10/2010 @ 1:49 pmnone of them (at least to the best of my knowledge) have an M.D. after their names.
AD – RtR/OS! #47 – Hey !
I type as one who is married to an MDeity – and she ain’t that bad !
(Good thing Mother’s Day was yesterday!)
(grin)
Alasdair (e7cb73) — 5/10/2010 @ 2:33 pmJust a little Monday levity.
AD - RtR/OS! (321c7a) — 5/10/2010 @ 2:41 pmTomorrow we work on levitation.
I would like to get Elena Kagan’s position on this.
TimesDisliker (04342f) — 5/10/2010 @ 3:00 pm#43 DRJ
Well, lets just start with a) if you are captured or taken into custody by one of the four armed services not exempt from Posse Comitatus, then you are a prisoner of war, your status as a legal or illegal combatant to be a decided by competent military authority; b) if you are captured or taken into custody by a law enforcement agency in the US while attempting to commit murder on a large scale for any reason whatsoever, it may be decided by competent civil authority that you are an illegal combatant so long as any of the five armed forces are engaged in warfare outside the confines of the US, and should be tried by a competent military authority.
Did I forget anybody?
I wasn’t quite sure how to express it yesterday evening, but shipwreckedcrew has salted the point sticking in my craw: Congress isn’t exactly the place to be litigating the exclusion of evidence. And I am not so sure that such legislation could be used to cloak the perpetrators from activities like human rights violations.
In the end, after all, even the Communist Party of the Soviet Union was put on trial.
EW1(SG) (edc268) — 5/10/2010 @ 4:18 pmI would like to get Elena Kagan’s position on this.
Comment by TimesDisliker
LOL… good luck with that.
GeneralMalaise (1a238d) — 5/10/2010 @ 4:20 pm