Obama Floats Plan to Delay Presentment to Judges in Terror Cases

Now we know how the Obama Administration wants to make its end-run around Miranda rights: by passing a law allowing police to delay bringing a suspect before a judge after arrest, so they can have more time to make them talk before a lawyer is appointed to represent them.

Shameful. Just a year ago, the Supreme Court decided Corley v. U.S. which said anything longer than 6 hours is unacceptable unless a judge isn't available.[More...]

Under the rule as revised by §3501©, a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was “reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]”). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was “made voluntarily and … the weight to be given [it] is left to the jury.” Ibid. If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.

Under the Obama proposal:

If approved, the idea to delay hearings would be attached to broader legislation to allow interrogators to withhold Miranda warnings from terrorism suspects for lengthy periods, as Attorney General Eric H. Holder Jr. proposed last week.

The goal of both measures would be to open a window of time after an arrest in which interrogators could question a terrorism suspect without an interruption that might cause the prisoner to stop talking. It is not clear how long of a delay the administration is considering seeking.

Taking rights taken from terror suspects today just makes it easier to take them from all of us tomorrow. It's ironic that this is one right even the Bush Administration didn't try and tinker with, and its our Democratic president showing so little respect for the rule of law.

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  • Display: Sort:
    "Shameful" (5.00 / 2) (#1)
    by desertswine on Fri May 14, 2010 at 09:38:00 PM EST
    is an understatement.

    The groundwork was started when (5.00 / 1) (#6)
    by MO Blue on Fri May 14, 2010 at 11:12:13 PM EST
    Congress failed to follow through with impeaching Nixon, built upon during Iran/Contra and solidified when no impeachment procedures were pursued during Bush II. I originally thought that further erosion of the Constitution would not happen until the next Republican president. When Obama and numerous Dems voted and help pass the Bush Protection and Telecom Immunity Act (FISA), I feared that it might happen during the Obama administration. Unfortunately, that is coming to pass.

    Since destroying Constitutional rights piece by piece is not generating any real outrage by the American public, I have lost hope that this will stop anytime soon.

    Point of order (none / 0) (#8)
    by Cream City on Sat May 15, 2010 at 12:20:03 AM EST
    Nixon resigned to avoid impeachment.  So my understanding is that only a sitting president can be impeached.  Not so?  I must be recalling this incorrectly, as you usually are so on-the-spot.

    Perhaps you mean that Congress failed to follow through with, what, calling for him to face trial?  But Ford's first act as president in pardoning Nixon would have precluded that, I thought. . . .


    Yes (none / 0) (#10)
    by squeaky on Sat May 15, 2010 at 12:24:24 AM EST
    The failure is to give BushCo a pass. It is framed as a sort of presidential professionalism, in order to mitigate the pathetic cowardice of doing nothing.

    Impeachment not possible after the fact.


    I don't think it';s ever been settled (5.00 / 1) (#11)
    by Ben Masel on Sat May 15, 2010 at 03:16:39 AM EST
    whether one can be impeached once no longer in office. Impeachment does carry an ongoing penalty, bar from future federal office.

    Could impeaching an Ex-President (none / 0) (#13)
    by observed on Sat May 15, 2010 at 07:49:21 AM EST
    might remove executive priviledge, enabling a prosecution?
    Another reason for an impeachment is to nullify a pardon.
    Suppose a President pardons every member of a criminal cabal in the White House before leaving office. Impeaching the ex-President would be a logical step, in this case.

    Wouldn't it be a silly reading (none / 0) (#14)
    by Cream City on Sat May 15, 2010 at 08:58:59 AM EST
    of the Constitution to say otherwise?  It says impeachment is to remove civil officers from office -- ergo, one must still be in office.

    I would be fascinated to see (I have looked now but cannot find) a solid reading of the law that somehow says it's possible to impeach someone already out of office.


    Suppose the President pardons (none / 0) (#18)
    by observed on Sat May 15, 2010 at 11:08:56 AM EST
    Osama Bin Laden of all crimes on his last day of office. Later, it's found that the President was paid $1 billion  for the pardon.
    What's the Constitutional remedy for this situation? Is there anything?

    Wow (none / 0) (#22)
    by squeaky on Sat May 15, 2010 at 11:52:50 AM EST
    Hard to imagine. It would take a united congress to pull that one off, with extra time on their hands.

    I suppose, your example would prevent a one term president, out of office, who was extremely popular, from resurrecting his or her presidential ambitions.

    The GOP and Dems would do a pincer movement and impeach, so that their less popular candidates could have a chance... lol


    More interventionism = (none / 0) (#27)
    by jondee on Sat May 15, 2010 at 02:26:59 PM EST
    more terrorist blowback = more erosion of the constitution "in a time of war" = equals more fearful public acquiescence..

    The quintessential vicious circle.


    History teaches (5.00 / 4) (#15)
    by Peter G on Sat May 15, 2010 at 10:34:08 AM EST
    that delay in presentment (bringing the arrested person before a judicial officer) to facilitate prolonged interrogation is a key tool of a police state.  It facilitates involuntary self-incriminating statements and abusive interrogation tactics, undermines the right to counsel (which under current case law attaches at the first appearance in a courtroom), and has been shown over and over to produce false confessions.  This proposal, in my opinion, is far more outrageous than tinkering with Miranda, which is, in reality, a much less effective tool for protecting arrested suspects from abusive interrogation.  The Supreme Court first recognized the need to create an enforcement mechanism for Federal Criminal Rule 5(a)'s "without unnecessary delay" command in McNabb in 1943, in a case of federal "revenuers" arresting a family of Tennessee moonshiners suspected of murdering one of their fellow officers, and holding them for days until they "confessed," before bringing anyone to court.  The practice of southern sheriffs -- and other local law enforcement, north and south -- using this tactic to facilitate police abuse was rampant throughout the '20s and '30s, and on into succeeding decades.  The Supreme Court was trying to find a way to get a handle on the problem through promulgation of an objective rule, without judges' having to investigate the factual details of every case, thus having to weigh the credibility of local police versus the arrested person about what exactly happened in the back room of the police station or local jail.  Justice Frankfurter, a former civil libertarian Harvard professor turned conservative proceduralist, wrote the decision for a unanimous court.  I do not think it is a coincidence that this occurred while the U.S. was fighting fascists in Europe whose police (Gestapo) were known to use similar tactics as a tool of totalitarianism and murderous racism.

    The term "Gestapo" (none / 0) (#17)
    by Cream City on Sat May 15, 2010 at 11:08:52 AM EST
    and the term "police state" came to mind for me, but I don't have the legal background, so I appreciate this mini-essay.

    Btw, the term "gulag" increasingly comes to mind re Guantanamo, too.  At least it's warmer.


    Oy! (none / 0) (#20)
    by squeaky on Sat May 15, 2010 at 11:47:02 AM EST
    What are they thinking? Haven't we already had enough of this kind of human rights abuse. What did we learn?

    Seems to be nothing, save for how to make matching stains.


    Yes, Jeralyn, you're right! (5.00 / 3) (#19)
    by Robot Porter on Sat May 15, 2010 at 11:42:40 AM EST
    Taking rights taken from terror suspects today just makes it easier to take them from all of us tomorrow

    Or you could just put it more bluntly:  Anyone could be a terrorism suspect. As we know the definition of terrorism is almost infinitely expandable.

    Can we finally lay to rest the idea (none / 0) (#2)
    by Anne on Fri May 14, 2010 at 09:39:38 PM EST
    that Obama represents traditional Democratic principles or has any respect for the rule of law?

    He is not a progressive, he certainly is not a liberal and I am hard-pressed to understand how he can call himself a Democrat.

    How uneasy does this make you about his Supreme Court appointments?

    Wow (5.00 / 1) (#3)
    by squeaky on Fri May 14, 2010 at 09:44:25 PM EST
    What rock have you been hiding under. This, unfortunately reflects mainstream democratic thinking, Hillary Clinton, Chuck Schumer, Biden, Pelosi, will all come out to support this nonsense.

    Not sure when you stopped paying attention... but this is hardly surprising for the Democrats.


    I'd agree as to (5.00 / 1) (#5)
    by Jeralyn on Fri May 14, 2010 at 10:26:11 PM EST
    Schumer and Biden, for sure. Pelosi, probably. Hillary, having never been on the Judiciary Committee, it's hard to say. I always thought she'd be more likely to tread more gingerly on restricting constitutional rights, because she'd have better and more progressive advisers. Even Bill has said he's sorry for some of the crime legislation passed under his reign. There's no way to tell now, and it's water under the bridge, but you are right that the Dems of today, and not just Obama, are way too close to Republicans in their views on liberty.

    And Even Worse (5.00 / 1) (#7)
    by squeaky on Fri May 14, 2010 at 11:56:33 PM EST
    These pols are reflecting a post 9/11 public view. GOP formula has worked. The post 9/11 public is willing to trade in the constitution for promises of being kept both safe, and #1.

    I'm not sure what's worse ... (5.00 / 2) (#21)
    by Robot Porter on Sat May 15, 2010 at 11:50:34 AM EST
    if Obama really believes in this, or if it's just a bit of craven politics.

    Neither says much for the man.


    In NY (none / 0) (#9)
    by squeaky on Sat May 15, 2010 at 12:21:07 AM EST
    Schumer was always considered to the left of Clinton.

    What a disappointment he has been.

    Once a politician lets the fearmongering card our of the box, the public gets hungry for more authority. Anything to feel safer. Civil rights of "others" goes first....


    He wasn't (none / 0) (#25)
    by Jeralyn on Sat May 15, 2010 at 01:34:00 PM EST
    left, he was right on many crime issues.

    Introduced a bill when he was in the House in 1997 to increase prosecution of juveniles as adults, even for drug crimes, and even those between 13 and 15 years old.

    Voted to make it harder for inmates to appeal death sentences.

    Here's another really bad one of his re: juveniles.

    From H.B. 810, the Anti-Gang and Youth Violence Act of 1997

    Revises Federal criminal code provisions regarding delinquency proceedings and criminal prosecutions in district courts to authorize a juvenile to be prosecuted as an adult if specified conditions are met, such as if the juvenile is alleged to have committed an act on or after the day the juvenile attains age 16 which, if committed by an adult, would be a felony crime of violence or a specified drug or other offense. Requires the approval of the Attorney General to prosecute a juvenile between the ages of 13 and 16. (Under current law, the decision to charge a juvenile as an adult for specified crimes is a result of a motion by the United States to transfer the juvenile for criminal prosecution, and the offenses subject to this transfer authority are limited.)

    Authorizes: (1) the prosecution of a juvenile as an adult for any other offense which is properly joined under the Federal Rules of Criminal Procedure, including for lesser included offenses; and (2) the court to order the transfer of a defendant to juvenile status under specified circumstances.

    I could go on and on, as I wrote about him frequently in the mid to late 90's, he was totally to the right on crime issues, like his pal Biden.


    Oy! (none / 0) (#26)
    by squeaky on Sat May 15, 2010 at 02:10:01 PM EST
    Well I will never pull the lever for him...  Not sure why he has the superficial gloss of being more to the left of Clinton... maybe it was just a faulty perception that only I held.

    I think others have it too (none / 0) (#28)
    by Jeralyn on Sat May 15, 2010 at 02:36:06 PM EST
    I remember my aunt lived in his district in Brooklyn in the 90's and I wrote Schumer a long letter saying I was going to tell her and all her friends to stop supporting him because he was no progressive. I can't remember if I ever mailed it, I probably didn't.

    Maybe The Liberal Jewish Schtick? (none / 0) (#29)
    by squeaky on Sat May 15, 2010 at 02:43:40 PM EST
    Anyway it has been clear to me that he is no progressive.. his clamoring for real ID, a few years back, pitted against Spitzer's plan for issuing driving licenses for undocumented workers.

    Really? So this is what you voted for, (none / 0) (#4)
    by Anne on Fri May 14, 2010 at 10:23:51 PM EST
    what you expected from a Democratic administration?

    You expected and approved of a broadening of what the Bush administration did for eight years?

    Now I know why I could not bring myself to vote for either Obama or McCain.


    Is Corley a Real Six Hour Rule? (none / 0) (#16)
    by Michael Masinter on Sat May 15, 2010 at 10:56:11 AM EST

    I understand Corley v. U.S. more narrowly.  Corley construes the Rule 5(a) presentment requirement, which in turn is based on the McNabb/Mallory exclusionary rule.  Corley makes a confession obtained from interrogation of a federal arrestee that continues beyond six hours without presentment inadmissible in a later criminal trial of the arrestee.  Is there other caselaw that punishes untimely presentment under rule 5(a) with dismissal?  

    If not, that seems to me to be a significant; it suggests that the government already is free to ignore Corley, just as it is already free to ignore Miranda as long as it is willing to proceed against a defendant without the benefit of any later obtained confession.  

    To take as an example the recent Shahzad arrest, even if Shahzad had refused to waive his Rule 5(a) presentment and his Miranda rights, the government could have continued to interrogate him; it just couldn't have used any later obtained confession as evidence against him at trial.  If as apparently was the case it already had overwhelming evidence of guilt, it could have continued to interrogate him knowing it could not offer his confession against him at trial, at least until it reached the outer limits of a constitutionally mandated probable cause determination following a warrantless arrest; that time limit is usually no later than 48 hours per County of Riverside v. McLaughlin, not 6 hours.

    Am I misconstruing Corley?  Does delayed presentment require dismissal?

    That's not to say we should change current law, or that criticism of Holder is unjustified; it's just to clarify the reach of Corley.  

    Yes it's a suppression issue (5.00 / 1) (#30)
    by Jeralyn on Sat May 15, 2010 at 02:50:30 PM EST
    I've filed a few motions relying on it this year. In one case, they got an arrest warrant, staked the suspects house out at 6 am, but waited until noon to arrest (which I suspect was intentional because they knew our federal magistrates wouldn't set the case that day if the arrestee didn't get to the federal courthouse before 12:30 p.m. ) So they give themselves a full day and night to work on the suspect to confess and cooperate, taking him to police interview rooms and then a local jail rather than the courthouse. If the arrestee doesn't already have a lawyer, he doesn't get one appointed until the first advisement in court. The cops just shove that Miranda waiver in front of them and tell them they'll be going away for 20 years and never see their kids grow up, and maybe even threaten to arrest the wife and call social services to take the kids.

    It's not about dismissing the charges, it's about suppressing supposed confessions.


    You are correct (none / 0) (#23)
    by Peter G on Sat May 15, 2010 at 12:04:26 PM EST
    It's a suppression rule, not a ground of dismissal.  The holding that interrogation beyond 6 hrs requires suppression of any statements obtained by exploitation of the delay was really established by Mallory in 1957.  Corley holds, if you want to get technical about it, that Congress did not repeal the McNabb/Mallory rule when it enacted 18 U.S.C. sec 3501 in 1970, particularly subsection (a) and (c), so that rule continues to be enforceable in federal court.

    Well (none / 0) (#24)
    by squeaky on Sat May 15, 2010 at 12:05:35 PM EST
    Considering that the word terrorist is such a slippery word, I can see how this new rule would be abused long before "tomorrow".

    Think of some kid who lights a firecracker, whose grandparents immigrated from Lebanon 50 years ago...  Busted...

    Before stripping the kid, and entire family of their citizenship, they would have carte blanch to work him or her over for a few weeks in a dirty dark underground cell.