DOJ/FBI Curtails Miranda Rights For Terror Suspects

Update: The text of the memo is here.

The Wall St. Journal has obtained a copy of a new Department of Justice Memorandum authorizing a delay in providing Miranda rights to terror suspects in certain circumstances.

The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

Isn't this a risky move by DOJ? What authority does it have to change Miranda rights? Shouldn't this be up to Congress or the Supreme Court? [More..]

"I don't think the administration can accomplish what I think needs to be done by policy guidance alone," said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. "It may not withstand the scrutiny of the courts in the absence of legislation."

The New York Times also has a copy of the three page memorandum, which it says was issued in October, 2010 by the FBI.

Matthew Miller, a Justice Department spokesman, said that the memo could not alter a constitutional right. He portrayed it as clarifying existing flexibility in the rule — especially when investigators are willing to risk sacrificing the ability to use a suspect’s statements in trial.

The remedy for a Miranda violation is suppression of the statements, and any evidence derived from them, at the trial of the person who made them. Other defendants ordinarily wouldn't have standing to challenge the statements at their trial, since it wasn't their rights that were violated. But, what if there's a policy that intentionally flouts Miranda? Is that a due process violation like outrageous government misconduct that could be raised by defendants against whom the statements were offered even if they weren't the person whose Miranda rights were withheld?

< Former Qwest CEO Joe Nacchio Sues Trial Counsel For Negligence and Overbilling | Brit. Officials Declare War on Drugs a Failure >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Risky move by DOJ? How about (5.00 / 2) (#2)
    by Anne on Thu Mar 24, 2011 at 09:14:13 PM EST

    From bmaz at Emptywheel:

    It was bad enough for the Obama Administration, headed by the supposed and so called "Constitutional scholar" Barack Obama, to propose inappropriate and unconstitutional legislation to restrict criminal suspects' Constitution based Miranda rights, but it is an egregious step beyond to simply arrogate to themselves the unitary and unilateral power to do it by DOJ memorandum fiat.

    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.

    This seems like a very strange way to show one's commitment to the rule of law, and sadly, it isn't the first example of it from this president and this administration.

    The problem with that post (none / 0) (#6)
    by jbindc on Fri Mar 25, 2011 at 08:55:27 AM EST
    But Congress may not legislatively supersede our decisions interpreting and applying the Constitution

    This isn't Congress we're talking about nor a legislative superseding of Miranda.  This the Executive branch, through one of its agencies, acting to try and supersede the Constitution.  In fact, the administration tried to get this changed through Congress and it was rejected.

    Now, I believe the overall point to be correct - I think the administration overstepped here.  But bmaz' point doesn't fit the facts of this situation.


    Actually, I think the point was (5.00 / 0) (#7)
    by Anne on Fri Mar 25, 2011 at 09:58:11 AM EST
    that the administration did try to get Congress to change Miranda - even though there is clear precedent - as cited - that Congress does not have the constitutional authority to do so.

    Are we to suppose that all these legal scholars didn't know and weren't aware of this when they started pushing for it?

    Or were they hoping for Congress to go along, a challenge to be made and this Supreme Court to ignore its predecessors' prior ruling?

    Either way, the question is, why?  Why is a Democratic president attempting to erode Miranda by executive order, going around Congress, and flipping off years of precedent?

    Seriously, if we can't count on Dems to hold the line on further erosion of rights, or to strenghen the ones we do have, what good are they?


    I have no answer (none / 0) (#10)
    by jbindc on Fri Mar 25, 2011 at 10:23:00 AM EST
    Somebody remind me why John Yoo (5.00 / 1) (#4)
    by oldpro on Fri Mar 25, 2011 at 02:14:32 AM EST
    is in the doghouse with liberal Democrats.

    They are trying to set up a test case (none / 0) (#1)
    by Peter G on Thu Mar 24, 2011 at 09:06:27 PM EST
    (as best I can tell), seeking a judicially-approved expansion of the existing, Supreme Court-approved "emergency" exception to Miranda.  And quite a radical -- or should I say, reactionary -- expansion, it would be.

    The right is to not have it used at trial (none / 0) (#3)
    by diogenes on Thu Mar 24, 2011 at 09:29:03 PM EST
    "He portrayed it as clarifying existing flexibility in the rule -- especially when investigators are willing to risk sacrificing the ability to use a suspect's statements in trial."

    There is no right to "not be questioned"--only the right to have the statements suppressed at trial.  If you catch someone planting a bomb, perhaps res ipsa loquitur is the guiding doctrine, and then who cares about needing the defendant's statements at some future trial.

    Are we there yet? (none / 0) (#8)
    by Lora on Fri Mar 25, 2011 at 10:13:57 AM EST
    Isn't this a risky move by DOJ? What authority does it have to change Miranda rights? Shouldn't this be up to Congress or the Supreme Court?

    Ya think?

    At what point do we agree that fascism has arrived?

    About 10 years ago. (none / 0) (#12)
    by getoffamycloud10 on Fri Mar 25, 2011 at 11:12:24 AM EST
    Obama Finds His Own John Yoo (none / 0) (#9)
    by ScottW714 on Fri Mar 25, 2011 at 10:17:02 AM EST
    Obama is getting riduculous, I have been wavering about 2012, but I'm fairly certain Obama isn't getting my vote.

    The arguement made about keeping the R's out of office with my vote is loosing a lot of traction.  I imagine with a lot of these stories, 'What would McCain be doing ?'.  And lately, it's the exact same thing.

    Where is Obama's head cheerleader, can't wait to here the rationalization on this one.