Romanticizing Republicans and Dubya - Comparing Obama To Neocons - The Miranda Question

[TomCADem]

There are several posts with wild accusations comparing President Obama to Bush based on statements that Holder is proposing to "limit" Miranda. When the links are followed, and the story is read beyond the Headline that blares some sort of rollback to Miranda, we see that what is being discussed are proposals to define the recognized "public safety exception" to the immediate reading of Miranda rights:

http://www.mainjustice.com/2010/05/11/the-origins-of-the-public-safety-exception-in-terrorism-cases/

The Origins of the Public Safety Exception in Terrorism Cases

The use of the “public safety” exception to interrogate terrorism suspects before reading them their rights appears to be a recent phenomenon. Indeed, as Attorney General Eric Holder noted over the weekend, the exception was “based on a robbery that occurred back in the ’80s and something to do with a supermarket.”

The public safety exception stems from a 1984 case, New York v. Quarles, where the Supreme Court ruled that statements given to police under questions prompted by a public safety concern are admissible in court. In that case, a police officer noticed a man he had arrested for rape was wearing an empty gun holster. The officer asked where the gun was — before reading the suspect his Miranda rights — and the suspect told him. The statement was used against the man at trial.

The courts have never defined the parameters of the exception, and it’s not clear how it applies in terrorism cases.

But in at least one case, a federal court contemplated the use of the exception an international terrorism investigation, perhaps providing the foundation for the Obama administration’s approach. The case, which grew from the investigation of the 1998 U.S. embassy bombings in Africa, was decided in November 2008, in the gloaming of the Bush administration.

Okay, this is the issue that we should be discussing. If a public safety exception exists in a supermarket robbery situation where there is a lost gun, what about during an unfolding terrorist bomb plot? This is the issue we should debate.

Instead, we get these crazy attempts to cut off debate with posts merely saying that President Obama is no better than Bush.

Really? Doesn't this sanitize George Bush? If memory serves, under Bush, the debate we were having was the appropriate level of torture that could be used on a terrorism suspect. Have we already forgotten the Fox News propaganda that water boarding is not torture? Have we forgotten the Lindsey Graham amendment to prevent detainees from any access to the Courts.

We should criticize and examine the actions of the Obama administration. But, when we start saying that President Obama is no better than Bush, then we are sanitizing the lawless conditions that existed during the Bush years.

Think about it. We are talking about the immediate reading of Miranda rights to a terrorism suspect with no dispute that the suspect is entitled to legal representation. The only question is timing. In sharp contrast, you have Lieberman and Scott Brown proposing to strip American citizens of their citizenship based on the mere accusation of terrorism. On CNN, the "centrist" news network, Kyla Phillips was openly advocating in support of this proposal.

Let us know elevate Republicans by suggesting that they acted like the current administration, and engaged in serious debates about the parameters of the established public safety exception under Miranda. They never even asked the question. They simply detained and tortured, then denied that they had engaged in such acts or that such acts were torture.

[ShortnFiery]

1. We must have a check on Executive Branch Power lest we morph into a Monarchy. eom

[NJmaverick]

3. Which is exactly why Holder is bringing the issue to Congress, glad you are starting to see the

light. As you know back in the dark days of george bush he simply declared law unchecked by Congress or the Constitution

[ShortnFiery]

4. Holder is part of the Executive Branch. Shame on him for flaunting the Constitution. eom

[NJmaverick]

7. As Attorney General I think it's part of his job to "flaunt" our Constitution

[TomCADem]

16. I Think Democrats and Liberals Should Flaunt The Constitution

The Republicans simply ignored the Constitution. I think we demonstrate our respect for rule of law by flaunting the Constitution. So, kudos if the AG is indeed flaunting the Constitution. It is about damn time!

[TomCADem]

9. Once again, Your "Monarchy" Argument That It Is Okay if Congress and Supreme Court concur...

Avoids the policy discussion. Under your "monarchy" argument, the wrong is that the President is acting unilaterally. He isn't. He is going to Congress to implement a Supreme Court precedent. See? All three branches. So, your monarchy argument would be satisfied.

However, does that make it right? I don't know, but that is the issue that should be discussed in depth assuming you are prepared to do so.

[TomCADem]

6. Disagree. Even if Congress and Supreme Court Concur, May Not Make It Right

Think About It, The Executive Branch Is Trying To Apply A Supreme Court Precedent and going to Congress in the process. I don't think we have separation of powers issue, since we have all three branches involved.

Rather, the policy question is whether this exception should be clarified? Just because Congress, the President and the Supreme Court agree to it, does not make it okay contrary to your point that it is only bad if the President does it unilaterally.

I would disagree with your point, and argue that it may still be bad policy even IF all three branches concur.

[NJmaverick]

2. Thanks for posting I have been making the same argument. This is a complex issue

with many moral and legal nuances. One can't properly discuss it with catch phrases.

[ShortnFiery]

5. No, human rights via the Constitution are not ambiguous. They are FIRM and CLEAR. eom

[NJmaverick]

8. Yet the Miranda ruling and rights came from an interpretation rather than a direct reading

of the Constitution. Just as the public safety exception was created in the same manner in New York v Quarles. Since they are not clearly spelled out it would be impossible to claim they are firm. The fact of the matter is Supreme Court interpretations of the Constitution were and still are at the heart of the matter. It's in no way shape or form as black and white as you suggest

[Name removed]

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[TomCADem]

15. Kudos To You For Trying To Engage In Discussion...

...There is a certain element that attempts to sabotage any dicussion in effort to make this Board unreadable or to drive out all those who disagree.

[NJmaverick]

20. Right back at you, this is an interesting topic and it certainly warrants some in depth discussion

[Kurt_and_Hunter]

11. The Quarles case concerns an "immediate interest"

It has nothing to do with formally interrogating a person in custody.

An analogy I've used elsewhere:

A cop arrives at a one-car crash. The driver is out of the car walking around and is obviously drunk. The car is on fire.

The cap says, "Is there anything flammable or explosive in your car?" The guy says, "Yes, my meth-lab equipment is in the trunk."

The cop then arrests him for drunk driving and reads him his rights. The firemen put out the car fire. Rather than having the car towed to the junkyard as would normally be the case the cop knows to get into the trunk to find the meth-lab equipment. The arrestee is later charged with possessing a meth-lab.

The question that prompted the meth-lab confession preceded the actual arrest. Does the timing mean the meth-lab in the trunk cannot be entered into evidence?

Quarles says no, that the pre-arrest inquiry was an immediate public safety interest. Note that in Quarles the guy was arrested right afterward and read his rights, as is normal.

One could expand the phrase "public safety" to mean that we should never read someone arrested for murder his rights because there is a strong public safety interest in convicting murderers. (There is!) But that would be absurd. Quarles does not apply to interrogation in custody. It is a heat-of-the-moment thing.

Also, the public safety exception is a rule of evidence. The question was not whether the cop could ask about the gun but only if the gun could be entered into evidence.

We can ask terror suspects about their plots till the cows come home. But if we elicit a confession it is only admissible in court if we read the guy his rights.

[TomCADem]

12. No, In Quarles, The Suspect Was In Custody, Thus The Need For Miranda...

Unless an exception applies. You say, "It has nothing to do with formally interrogating a person in custody." Well, then there is no need to even get to the Miranda question at all. You use the word "arrest," but you don't have to formally arrest someone to trigger the right to Miranda. Otherwise, officers can simply detain someone without formally placing them under arrest to avoid Miranda. The key issue is are they in custody?

For example, if there is a traffic accident, and there are a bunch of witnesses, do officers have to read Miranda rights to all of the bystanders? No. They are not in custody.

In Quareles, the suspect was order to stopped, frisked, then asked about the missing gun. He was in custody, but his statements still come in despite the lack of Miranda warning, because of the public safety exception.

If the suspect is not in custody, there is no need for Miranda.

[Kurt_and_Hunter]

17. you know the distinction I was making

My point was the the guy was read his Miranda rights about two minutes after the topic exchange... that whatever exception was being carved out did not apply to sweating someone for a week in FBI headquarters.

As for the custody/arrest distinction... obviously cops do not Mirandize people upon detention in practice. When pulled over by a cop I am obviously not free to go, but he asks me how fast I think I was driving without reading me my rights. That's practice. Whether they should do that a separate question.

[TomCADem]

19. When you are stopped by a police officer, you are not in custody...

...it is considered an investigatory stop. In Quarles, the Supreme Court actually found that the suspect was in custody. If the Supreme Court found Quarles similar to the traffic stop example that you gave, then once again, there is no need for a public safety exception, because there is no need for Miranda in the first place.

I think you hit the nail on the head about "sweating someone for a week in FBI headquarters." In the current Faisad case, it did not make it difference, because the suspect is continuing to talk after Miranda. But, what if he suddenly shut up upon being given Miranda. Should all his pre-Miranda incriminating statements be thrown out? That is the issue that we need to confront.

Now, I think it is perfectly reasonable to risk evidence being deemed inadmissible, because the first priority of the government should be keep the public safety. The second priority is to build a case against Faisad. The question is whether there is tension between these two goals.

During a terrorist incident, the Government wants to stop the plot, but they also want to build a case against the terrorist. The scope of the public safety exception is the key issue. How much time is allowed to elapse after someone is placed in custody? Two minutes? Two weeks?

[Kurt_and_Hunter]

23. In the real world none of this matters, of course

Rules of evidence become pretty abstract concerns when we have a doctrine that nobody shall ever be released even if acquitted.

So I take all this stuff as an attack on Miranda itself from the right. Then Obama plays along for purely political reasons and some folks get drawn into the idea that there's a legitimate issue.

The whole thing is kind of ridiculous. Some folks seem to actually believe that reading a terrorist his rights will affect his conduct in custody.

Now, preventing him from talking to a lawyer is different. That actually will affect his behavior in custody.

But if people led with the real intent (denying counsel) it would sound bad so we focus on a ritual recitation.

[NJmaverick]

26. What do you do with someone that is openly hostile to the US and swears they are going to kill

Americans as soon as they get out of prison, but they have to be released because Bush blunders caused all the evidence to be thrown out?

[Kurt_and_Hunter]

27. All of these grim hypotheticals have normal criminal law analogs

Jails have been releasing dangerous people since this nation began when their sentences end. All sorts of dangerous people get acquitted for various reasons. This is normal free-society stuff.

What do you do with someone that is openly hostile to the US and swears they are going to kill Americans as soon as they get out of prison, but they have to be released because there is no evidence?

[NJmaverick]

30. To be honest I am not sure what the system's options are in the case you describe

I would like to think they have the ability to protect the public though though such means as commitment to a mental facility. The problem with Terrorists is that they are enemies of the US so the desire to kill is not necessarily insane.

[Kurt_and_Hunter]

31. It will always be the case in an open society

The American system is designed to allow a certain amount of criminality is society, including violent criminality. It is the unavoidable price of not imprisoning the innocent.

What gets me about this Miranda thing is that the specific Miranda warning has little chance of affecting whether an accused terrorist talks or not.

What would make a difference is whether he has access to a lawyer. Most people talk until they see a lawyer and then the lawyer tells them to stop talking because it cannot help them.

So a provision to bar terror suspects from having counsel would probably have a real effect, but would sound terrible.

The Times Square guy has lived in America for a long time. He has probably seen cop shows. The Miranda speech isn't secret. So he probably knows he has a right to a lawyer and a right to remain silent.

If he refuses to speak do we compel him? If he asks for a lawyer do we provide him one?

I recognize the security issues involved but the current anti-Miranda thing is mostly driven (and this is not directed at you) my RWers who have been gunning for Miranda since the 1960s.

[NJmaverick]

33. From my understanding of the issue it's more than just the lawyer

under the Miranda ruling a suspect merely states that they wish not to speak and all interrogation must stop. I think authorities in these cases should be allowed to continue lines of questioning that involve other devices/attacks as well as accomplices and organizational ties.

[NJmaverick]

13. A more appropriate example- A bomber is captured such as the Times Square Bomber

the authorities interrogate him to the possibility of more explosives being set. If he confesses and they are found and diffused it's quite possible the evidence couldn't be entered into court. This is the issue they are trying to address. Terrorist often plant more than one device or have more than one attack in motion. The idea of letting the terrorist lawyer up and shut up before determining this is at the heart of the matter. Quarles is about the idea that the public's safety must be considered along with the issue of self incrimination

[Name removed]

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[Kurt_and_Hunter]

18. Do you want the law changed or not?

Under the law the fruits of such an interrogation are not admissible evidence.

You can argue that the law should be changed to allow what you propose or argue that the law currently allows what you propose.

It's hard to argue both.

Were I in Congress I would, cognizant of my oath to uphold the Constitution, vote against such a law because it is facially unconstitutional under current law.

Some people seem to think that Congress and the President are supposed to act unconstitutionally, pushing the envelope and relying on the courts as a check. That is not my view.

[TomCADem]

21. Here Is The Current Law...President and Congress Can't Change Supreme Court Ruling

Congress and the President can't change Miranda or other Supreme Court interpretations of the Constitution without amending the Constitution, and that is not on the table. The issue is whether Congress can issue standards to implement a particular decision. Note how the summary notes that the "narrow exception to the Miranda rule recognized here will to some degree lessen the desirable clarity of that rule." I think the question is whether the parameters of the exception can and should be clarified?

http://supreme.justia.com/us/467/649/case.html

Respondent was charged in a New York state court with criminal possession of a weapon. The record showed that a woman approached two police officers who were on road patrol, told them that she had just been raped, described her assailant, and told them that the man had just entered a nearby supermarket and was carrying a gun. While one of the officers radioed for assistance, the other (Officer Kraft) entered the store and spotted respondent, who matched the description given by the woman. Respondent ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun, but lost sight of him for several seconds. Upon regaining sight of respondent, Officer Kraft ordered him to stop and put his hands over his head; frisked him and discovered that he was wearing an empty shoulder holster; and, after handcuffing him, asked him where the gun was. Respondent nodded toward some empty cartons and responded that "the gun is over there." Officer Kraft then retrieved the gun from one of the cartons, formally arrested respondent, and read him his rights under Miranda v. Arizona, 384 U. S. 436. Respondent indicated that he would answer questions without an attorney being present and admitted that he owned the gun and had purchased it in Florida. The trial court excluded respondent's initial statement and the gun because the respondent had not yet been given the Miranda warnings, and also excluded respondent's other statements as evidence tainted by the Miranda violation. Both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed.

Held: The Court of Appeals erred in affirming the exclusion of respondent's initial statement and the gun because of Officer Kraft's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly, it also erred in affirming the exclusion of respondent's subsequent statements as illegal fruits of the Miranda violation. This case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. Pp. 467 U. S. 653-660.

(a) Although respondent was in police custody when he made his statements and the facts come within the ambit of Miranda, nevertheless, on these facts, there is a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted.

Page 467 U. S. 650

into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved. The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. In this case, so long as the gun was concealed somewhere in the supermarket, it posed more than one danger to the public safety: an accomplice might make use of it, or a customer or employee might later come upon it. Pp. 467 U. S. 655-657.

(b) Procedural safeguards that deter a suspect from responding, and increase the possibility of fewer convictions, were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege against compulsory self-incrimination. However, if Miranda warnings had deterred responses to Officer Kraft's question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting respondent. An answer was needed to insure that future danger to the public did not result from the concealment of the gun in a public area. P. 467 U. S. 657.

(c) The narrow exception to the Miranda rule recognized here will to some degree lessen the desirable clarity of that rule. However, the exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. Police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect. Pp. 467 U. S. 658-659.

[NJmaverick]

22. I really think that New York v Quarles opened the door that there are not absolutes in terms

of Miranda rights. You have to remember where the what the foundation of that Miranda Rights ruling comes from. At the time police had policies and classes were taught on how to brow beat and badger suspects into confessions. This was clearly a serious wrong that needed to be addressed and corrected. Now the idea of getting as much useful information from a terror suspect that can prevent future attacks or mitigate current ones is a different story in my book. It's certainly getting into a gray area though. That's why I like the idea of enacting the change through Congress. I would further stipulate the limitation that the questioning be along the lines of other devices/actions or determining others involved in the act and I would keep questions directed at determining the suspects guilt still require Miranda warnings.

[Kurt_and_Hunter]

24. opening the door is a trial term, not a Constitutional concept

One could say that Quarles suggests some sympathy on the court for shit-canning Miranda but that is a human calculation, not a Constitutional doctrine.

[NJmaverick]

25. I don't "shit-canning" is a good choice of words. Neither Holder or the courts

are looking to eliminate Miranda rights or what they stand for. Rather they are looking to refine the rule so that we don't get unintended consequences like Miranda getting in the way of saving lives or stopping terrorists.

[Kurt_and_Hunter]

28. Miranda has always gotten in the way of saving lives.

Always, always, always.

From the first minute it was handed down.

That was not a surprising consequence, it was well understood.

That consequence was understood at the time to be an implicit price of living in a free society.

And it still is.

Do you draw a distinction between someone suspected of being a serial rapist, a serial killer, a terrorist, a potential school-shooter... and if so, why?

The Bill of Rights has been letting dangerous guilty people go for ages. It also prevents a certain amount of imprisonment of innocent people. It is a trade off.

Why is being accused of terrorism so different from being accused of being a serial child murderer?

[NJmaverick]

29. response to questions

"Do you draw a distinction between someone suspected of being a serial rapist, a serial killer, a terrorist, a potential school-shooter... and if so, why?"

For the most part if you have these people in custody you have mitigated the danger to society. In the case of terrorism capturing one actor may not stop the danger. There could be other attacks in the works or cohorts to carry on the mission. That's where I see the difference. The similarity is that in both cases you may have to release the suspects because you can't prove a case against them. As you said that is the cost of living in a free society. I am willing to pay that price but I am not sold on the idea of tying the authority's hands when they are attempting to save lives.


"Why is being accused of terrorism so different from being accused of being a serial child murderer?"

See above, although if they have kidnapped a child and the child has not been found, I wouldn't have a problem with using the Public Safety clause to allow the suspect to be questioned as to the where abouts of the child prior to being given their Miranda rights.

[Kurt_and_Hunter]

32. I recognize the valid interest in other plots

Stepping through Miranda rights in practice, there is not barrier to asking the suspect stuff all day long. It's ultimately just a rule of evidence.

I hope that we do not round people up at random and then hope they confess to being terrorists. We have the Times Square guy cold. We have more than enough evidence to convict him without a confession so I don't see why Miranda would pose any problem. The only downside would be if we elicited something else against HIM. He can rat out other people and Miranda doesn't come into play.

And we are going to put him away for a zillion years no matter what happens.

So there's no down-side in that case.

In a major ticking-bomb scenario the bomb is more important than eliciting a confession that will stand up in court, so it's an easy call. Again, a trade-off.


Miranda is 90% about confessions and we have learned that a lot of confessions are false. And not always elicited from torture, either. If you press them long enough in a confusing environment some people will freely confess to crimes... will start agreeing with whatever a policeman says. They will sign confessions just to end the questioning.

It's weird. I don't think I would do it. But we know for certain that many, many confessions are false. And that's why Miranda is valuable. In a few instances someone might be reminded (in a stressful situation) of something they already knew from TV... that they can not answer and can ask for a lawyer.


Confessions are a major part of everyday criminal law. Are they central to terror cases? I doubt it.

So in practice I do not want Miranda weakened for little pay-off. Once this was done for terror suspects it will be eventually expanded to include the kind of violent crime cases I was talking about. How could any politician vote against canceling Miranda for child molesters?