Holder: Let’s “Modify” Miranda, Weaken It

(10 am. – promoted by ek hornbeck)

I awoke this morning to Eric Holder’s concession on ABC about “modifying” Miranda in terrorism cases.  I am really unhappy that the Administration is willing to give ground on this Constitutional principle, especially when in the most recent terror case the Pathfinder Bomber, who was twice given his Miranda warnings, is being such a conversationalist with the authorities.

An attack on Miranda, a precedent that has weathered 42 turbulent years, even a concession as mild as Holder made today, is usually an offering to certain kinds of voters, voters who are afraid, who are “law and order,” who are ready to sacrifice the Constitution for “safety.”  So I see today’s remarks as a dog whistle.  But I don’t know why Holder is calling these particular stray dogs.

Join me in the pound.  

Apparently, the Attorney General had this to say:

“The [Miranda] system we have in place has proven to be effective,” Holder told host Jake Tapper. “I think we also want to look and determine whether we have the necessary flexibility — whether we have a system that deals with situations that agents now confront. … We’re now dealing with international terrorism. … I think we have to give serious consideration to at least modifying that public-safety exception [to the Miranda protections]. And that’s one of the things that I think we’re going to be reaching out to Congress, to come up with a proposal that is both constitutional, but that is also relevant to our times and the threats that we now face.”

So, in response to Republican screams that the Pathfinder Bomber, who parenthetically is talking and confessing his brains out as I write, shouldn’t have been given Miranda warnings, the AG is agreeing.  This is tough to understand.  Instead of pointing out that Miranda didn’t hurt anything in this case and in many others, and in fact, there is no case where giving Miranda seems to have hurt a terrorism investigation, the Attorney General is offering some red meat to the howling canines.

If you think about Miranda and terrorism, there are some obvious points that seem to have been missed.  First, Miranda has been on television around the world numerous times daily since 1968, when the decision was announced.  You can probably recite most of the warning from memory.  We all know that it applies when someone in custody is being questioned by cops.  Do we really think that after all this time terrorists, whether or not they are read the Miranda warnings from a crumpled, little yellow card, don’t know they have a right to remain silent?  That they’ve not been told that there is Miranda if you get arrested in the US?  So that reading them their rights will be a revelation to them and spur them to sudden silence?

And what if you don’t give warnings, what happens then?  Then the police aren’t allowed to use the confession in their direct case at the trial of the person who didn’t get warnings. It doesn’t stop them from using the evidence you give against somebody else.  It doesn’t stop them from trying the person they are questioning.  It just stops the use of the confession.  That’s suppressed.  Just that.  And everything that they derive from that about the accused.  Does that ruin the case?  Maybe.  Maybe not. But giving Miranda is not equivalent to finding the accused not guilty.  Far from it.

Even more preposterous in today’s concession is the lack of history brought to the table.

In 1968, two years after the Miranda decision, Congress passed a law that purported to overrule it. This statute, 18 U.S.C. § 3501, directed federal trial judges to admit statements of criminal defendants if they were made voluntarily, without regard to whether he had received the Miranda warnings. Under § 3501, voluntariness depended on such things as (1) the time between arrest and arraignment, (2) whether the defendant knew the crime for which he had been arrested, (3) whether he had been told that he did not have to talk to the police and that any statement could be used against him, (4) whether the defendant knew prior to questioning that he had the right to the assistance of counsel, and (5) whether he actually had the assistance of counsel during questioning. But the “presence or absence of any of” these factors “need not be conclusive on the issue of voluntariness of the confession.” Because § 3501 was an act of Congress, it applied only to federal criminal proceedings and criminal proceedings in the District of Columbia.

source

And in Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court upheld the requirement that the Miranda warning be read to federal criminal suspects, and struck down this federal statute that purported to overrule Miranda v. Arizona in a 7-2 decision written by Rehnquist with Scalia and Thomas dissenting.  So, to make a long story short, a decade ago the question of whether Congress could modify or overrule Miranda was already a dead letter.

Sure, that was before 9/11.  Sure, the Court has changed. Sure, the original majority in Dickerson has left the Court.  But there is no case in the pipeline that even tangentially approaches the issue.  Because there is no such legislation.  Holder’s remarks aren’t about a repeal or modification of Miranda by the Court.  They’re directed toward an eventual statute that will seek to modify Miranda.  

Holder’s remarks are a sop for the whining republicans.  And their perceived constituencies.  These remarks are directed exclusively at the extremely fearful, those who are ready to give up Constitutional rights for their perception of their safety, who might think at some future time that the administration is “soft on terrorism.”  That’s just pitiful.


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simulposted at The Dream Antilles and dailyKos

Updated: 1:00 pm ET 5/9 (Title changed)

18 comments

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  1. Thanks for reading.

  2. I rarely watch the sunday shows, but i just turned it on….. ugh.

  3. Neither of them are of particularly high moral character. We can expect more of this dismantling of basic American values.

  4. … to keep up the secret renditions, interrogations, imprisonments without charges.

    I’m ten inches away from calling for impeachment.  Let’s see the so called apologists for the pandercrats try to spin this crap.

    No, Holder, this isn’t how you are going to solve your “Gitmo” problem.  

    • Edger on May 9, 2010 at 20:32

    Republicans could never put this shit over on people and still seduce them into believing they are supporting anything remotely progressive, liberal, or honest.

  5. Daniel J. Meltzer, a top White House lawyer who has played a critical behind-the-scenes role in the administration legal team, is resigning next month and will return to his tenured position as a Harvard law school professor, the White House said on Friday.

    Mr. Meltzer’s last day as the principal deputy counsel to President Obama will be June 1. Since the administration took office, he has worked on nearly every major legal issue the White House has handled, a sprawling portfolio that ranged from domestic policies to national security matters.

    Among other things, Mr. Meltzer played a leading role in the administration’s efforts to close the military prison at Guantanamo Bay, Cuba, and related policies affecting terrorism detainees.

    He was also the White House’s main contact with the Justice Department’s powerful Office of Legal Counsel, which evaluates whether proposed policies would be lawful.

    The acting leader of the Office of Legal Counsel, David Barron, said that Mr. Meltzer had been a “super-calm presence” and a “very serious thinker about hard issues” in their work together.

    First Rahm makes Gregory Craig the fall guy for not closing GITMO and now Craig’s deputy has left because the White House wants to water down Miranda.

    “First thing we do, let’s kill all the (good) lawyers.”

  6. I caught just a tad of the program.  If Holder said it once, it said it I don’t know how many times . . . “We’re exploring our options . . .  !”  His character does not come across as one of a strong personage, but one who is quite willing to “wiggle” willy-nilly to suit the situation.

    Seems all the Repugs have to do or have ever had to do is start screaming their vile, and the Dems start scrambling to find appeasement to them.  Pathetic scenario!

    But worse are the all too meny dummkopfs in this country that do believe we must do anything and everything to fight the “war on terra,” with all willingness to give up our rights, Constitutional provisions, etc., whose fear-orientation the Repugs have played on for how long now????  

  7. and the Demopublican Congress will have done all sorts of things that the Bush administration in the heights of its hubris will never have dared do.

    The first step, of course, as always is to get your enemies invested in your philosophy and past actions.  The Republicans and the far right and the corporations gambled that by getting Obama to be “bipartisan” and get them to own the things they did, they would be successful in getting both him and his supporters to become apologists for the exact same things these very same enemies decried when Republicans were in power.  We now have the counterpoint to IOKIYAR, we now have IOKIYAD.

    This filters down into issue after issue.  The Republicans could never have destroyed Social Security, now the Democrats may do just that, and the Republicans, being utterly devoid of consistency or principle, will once again show this by insisting that even the destruction of Social Security is not enough for them.  Republican chutzpah is rewarded by the Democrats — why would they stop?  If the Democrats passed a law putting every “illegal immigrant” into a concentration camp, the Republicans would argue the Democrats were soft on law and order.  This is their strategy, which so many Democratic activists and operatives seem deliberately clueless on.  

    If I am a Health Insurance company and can get even more favorable legislation by arguing that the very legislation my company WROTE is insufficiently corporatist, why would I not do that?

    This gamble paid off spectacularly as we now have legions of “Democratic supporters” excusing the very things they were viscerally opposed to, before.

    And when they take all your principles away, all that is left is partisan politics and that’s it.  So, am I surprised that Holder is talking about snipping away at Miranda?  Nope.  Because Holder’s Justice Department never had the principles in the first place of prosecuting the powerful who break laws, as opposed to enforcing the current regime even where it punishes the weak and innocent.  There is and never was a principle to uphold the rule of law and the bedrock of the Constitution, why would we start now?

  8. growing?

    HOPEfully Lesser of Two Evils won’t work?

    HOPEfully ‘perfect being the enemy of the good’ will start to collapse?

    are they fascists, completely totally utterly clueless,

    or a mix of both!

    rmm.

    • Edger on May 10, 2010 at 02:52

    just goddamn pieces of paper anyway, aren’t they? :-/

  9. And said to myself “Republican presidents would never get away with that because the Dems would oppose it.”  

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