Attorney General Eric Holder said for the first time today on ABC’s “This Week” that the Obama administration is open to modifying Miranda protections to deal with the “threats that we now face.”
“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.”
I’ve completely had it with this administration’s complete obeisance to the national security state and their willingness to adopt indefensible positions.
Joel
I was pissed to hear this, too. I’m tired of the scaremongering.
NobodySpecial
Be careful there, Cole, you’ll get the Purity Police crying.
Michael
The terrorists won almost immediately, in that they terrorized us into changing our way of life back in 2001.
All those “courageous” [guffaw] conservatives in Bumfuck AL, Asspick MS, Methlab AK and Horseporn GA went all trembly and as usual, drove national policy despite the fact that they never were going to be victims of terror.
Bill E Pilgrim
Is this another thread about Rentboy.com?
Skepticat
Land of the free and home of the … whimpering wusses.
annia
Time to tell us how much better Obama is than Bush, and to stop complaining.
DecidedFenceSitter
@annia: Simple, Bush would have just done it – Holder and the rest of ninny security Obama regime are going to Congress to do it legitimately.
Bill E Pilgrim
NB: Yes I felt the same way when I read that this morning about Holder and Miranda. But then I one of those who’s not surprised. It’s not even the “too similar to Bush” aspect that bugs me, I expect similarities, and differences, and figure I can live with that. It’s when it becomes clear, bald-faced pandering that I just can’t stand it.
Hunter Gathers
Agreed. Now if only we can get
the populationwhite people to stop pissing thier pants every time someone lights thier dick on fire or tries to ignite non-explosive fertilizer, we might actually be able to do something about it.Dave C
@annia:
Being “better than Bush” is such a ridiculously easy hurdle to clear that one can do so while still holding to policies that may be deeply flawed and are worth complaining about.
mistermix
The short answer is, no, we can’t sack Holder, because we can’t confirm his replacement. Not that the Obama wants to sack him. Obama et. al. have decided to run right down the middle at DoJ, cutting a lot of babies in half, because they think they don’t have the political capital to make a tough stand on civil liberties.
slag
As Spencer Ackerman notes, they’re just not interested in retaining civil libertarian support, which is, of course, only a symptom of the larger problem.
henqiguai
What’s with this “protections” noise ? Am I not understanding the whole Constitutional protections thing ? The Miranda decision doesn’t provide any additional protection, merely requires the iteration of existent Constitutionally guaranteed protections to anyone taken into police/Federal custody. I am all for the decision, but as a citizen I should at least be passing aware that the Bill of Rights allows me to tell the authorities to go jump until my lawyer shows up. But again, I could be seriously ill-informed.
Cain
This is pretty disturbing. Once you start fucking around with citizen’s rights, it is a bad road to be on.
cain
fucen tarmal
“the only thing we have to fear is, fear itself, and fear itself gives us an indescribable hard-on” instead of buying gask masks homeland security should have been asking people to buy ball-gags, latex clothing is the new duct tape, spank benches are the real plastic wrap…
in one sense i am jealous, because just like bdsm, i tried, i just don’t get it, i mean, i understand it, and fear(in my analogy) is the fuel to get in touch with the same raw impulses, but it doesn’t work for me.
the rational thing seems to accept some level of uncertainty, some risk, some guilt, some reasonable responsibility, but this thing is truly fetishistic…its not supposed to make sense unless it does. for those people, and there seem to be a lot of them, they need to hear this…politics baby! you know you want it.
Chad S
This comment of Holder’s is extremely vague. Federal law allows the cops to not mirandize someone if they see an imminent threat to public safety(SCOTUS confirmed this), so I don’t know if I would get upset until I saw what Holder is proposing. If he’s talking about using the public safety exception, then he’s still coloring inside the lines.
Turgidson
I guess it’s a step in the right direction that Holder at least realizes that he should consult with Congress before eviscerating important civil liberties (Cheney/Bush wouldn’t have bothered with that), but yeah. Calling this a turd sandwich is being awfully polite.
Jose Padilla
The Miranda decision is already so shot full of exceptions it looks like Swiss cheese. Holder’s probably talking about squeezing through one or more of those exceptions that already exist.
henqiguai
@Cain (#14):
Y’er too damned late. That road has been rumbling under the wheels of this country for decades. One could argue that the confluence of new communications channels and a growing interest in civil liberties and politics in general has just made the outrage more visible. Whether you were on a meandering country lane or the far left lane of a superhighway of threatened and compromised rights all depended upon your particular socio-economic and ethnic ‘vehicle’.
flavortext
“Modifying that public-safety exception [to the Miranda protections]”? Weak sauce. Now show trials, there’s an idea. Then the public will really know the Obama administration is serious about terrorism.
zhak
I know we don’t know much about history in this country, but we managed to get through WWII without sacrificing our core ideals as a nation.
Unlike the hysteria of today, the threat back then was real and existential. And unlike the behaviors of today, we managed to win without systematic torture (the interrogators played chess with the Germans & won ’em over!) and while remaining the good guys.
I’m ashamed of what is happening to my country, which I guess means that my opinion doesn’t count because to be “a real American” means that I must feel that we’re the greatest greatest GREATEST whatever we do. But I’ll tell you something, we’d be a lot better off if people stopped paying attention to the Crazies.
We used to be a nation of sanity & laws. & we’ve lost our way.
Martin
Oh, please. Holder is trying to split the difference between the two camps that equate Miranda to ‘full protection under the law’. On the left, if you catch a guy wearing a diaper full of explosives, clearly Miranda is useless because the explosives, and not his statement is going to convict him. Not that it hurts anything, mind you. On the right, reading him Miranda doesn’t guarantee him free blowjobs from Nancy Pelosi while he awaits trial, and refusing to Mirandize him doesn’t appear to matter either.
Seems to me Holder is looking for a political middle ground, because I don’t see that there’s a legal middle ground on this issue. I’ve yet to hear anyone suggest that Miranda is even an issue with how these guys come to trial or whether or not they talk, so what’s the problem, other than it’s a political act rather than a legal one, and that alone sucks a bit.
Mudge
The phrase “relevant to our times and the threats that we now face.” is doublespeak. If I remember correctly, the threat of nuclear annihilation from the Soviet Union trumps the threats we now face. And if I also remember correctly, those who gave the bomb to the Soviets were tried in civil court, convicted and executed (admittedly before Miranda). Strange country we had back then.
gene108
I wish I could be surprised, but every AG, since LBJ has helped perpetuate the “war on drugs” and whatever other measures, which only serve to increase the police powers of the government.
Holder’s more disappointing because after the Bush, Jr. years, we were hoping for a reversal of some of the shit, but I “progress” can’t be unmade.
Brien Jackson
Is it really that hard for people to read around before they shoot there mouth off? “Indefensible?” Really?
jfxgillis
John:
I don’t get the intensity on either side of this, either your disgust or the neocon’ smug triumphalism.
A public-safety exception to Miranda seems common-sensical to me. Would the first thing some police negotiator has to say in a hostage situation be the reading of rights? Would you say anything incriminating in the negotiation with a hostage-taker absent Miranda is bad evidence?
I actually think the cops did Miranda perfectly in the Times Square case. Quick and dirty questions to ensure it wasn’t part of something bigger, then Miranda to develop criminal evidence.
Chad S
@zhak: Japanese internment camps were okay?
joe from Lowell
This is definitely an area of concern, but I’d need to see the details before I made a judgment.
There is a legitimate public safety exception. The police don’t need to Mirandize a suspect to ask “Do you have anything in your pockets that might hurt me?” or, in the case from the 80s that defined this exception, “Where’s the gun?” Using the term “public safety exception” isn’t the same thing as Bush invoking “national security” to do whatever he wants, because the public safety exception isn’t defined in terms of the suspected crime involving public safety, but the existence of an imminent threat to public safety at the time of an arrest. Also, the question the police ask has to relate to addressing a public safety threat, rather than just gathering evidence about the crime.
I suppose it’s possible that there is some action Congress could take to modify the public safety exception that would still pass Constitutional muster. Keep an eye on this one, but it’s too early to be jumping to conclusions until we know more about what they’re proposing.
Corner Stone
I’d rather sack the Evony girl.
And John Cole, buddy, you can always vote for Hilary/Edwards/Nader in 2012.
Bad Horse's Filly
@Skepticat: I was going to write something profound, but you summed it up so well I can now say ‘this’ and be off to cycle.
Corner Stone
@joe from Lowell: Come on man. There’s a bit of a diff between “Do you have any needles on you?” and having a suspect in custody and control.
MAJeff
@zhak:
You have heard of the United States placing its citizens of Japanese descent in concentration camps like Manzanar, no?
VincentN
I tend to see this are mere pandering, which is not good but not apocalyptic either. The ‘public safety’ exception to Miranda does exist whether we like it or not and if the proposed law simply re-affirms that in the same way Congress re-affirmed to Stupak that the law is the law with regard to federal funding for abortion then I don’t see a big problem. But this opinion is subject to change regarding what the actual proposed language is, of course.
cat48
It absolutely comes down to political capital as well as your parties support as a whole.
I’ll never forget how easily the Democratic Senators completely turned on Obama when it comes to civil liberties. They refuse to release funds so Gitmo can be closed; Schumer & Gillibrand flipped on NY trials (Bloomberg too); etc.
No one in Congress is dependable. Even Glennzilla’s hero, Feingold voted to freeze funds for gitmo and I would bet he would go along with anything else related to Miranda because it is an election yr for him.
But yet, the admin should go full speed ahead alone into another brick wall like they did with Gitmo & ny trials. I’m not ready to throw a hissy fit about it just yet.
kay
@Martin:
Well, Martin, respectfully disagree. He’s relying on the public safety exception to Miranda now. He stated that last week, although it went mostly unnoticed. They’re waiting hours to read it. The public safety exception is relatively narrow. It’s based on case law.
What he wants is to codify his in-fact interpretation of the narrow exception. It’s substantive. Whether it comes into play in each case or any case doesn’t change that.
Here’s what he said, last week:
“At a news conference Tuesday, Holder and other officials said that Shahzad was initially interrogated under the public safety exception to the Miranda rule and that, after being read his rights, he continued talking.”
His interpretation of that exception is broad. He wants Congress to write that into law. Agree or disagree, it’s a substantive change.
BeccaM
So is there anybody left in our government — GOP or Democrat, any of the three Federal branches, anyone in state government — who honestly believes in the Constitution of the United States of America and the rule of law? Anyone who actually remembers taking that oath to uphold, protect and defend it?
As far as I can tell anymore, we’ve become nothing more than a nation of terrified, pants-wetting bullies who fall all over ourselves to play “More Authoritarianism and Violent Aimless Retribution!” at the least provocation.
joe from Lowell
@Corner Stone,
The public safety exception already allows questions of someone in custody and under control. In the case that defined this exception, a guy who’d robbed someone with a gun was arrested, in control, and had an empty holster on his hip. The cops asked him, “Where’s the gun?” before Mirandizing him, because a loaded gun lying in someone’s front yard could be dangerous, quite apart from the crime the suspect had committed.
So that – in custody and under control – isn’t the standard here.
Robertdsc-iphone
Failure we can believe in.
Bill E Pilgrim
@Corner Stone:
This is what I love about this site.
To a certain number of posters here, any criticism of Obama or his administration is empirically a vote for Nader in the next election.
Wait did I say love? I think I meant the other thing.
joe from Lowell
I’m not blown away by the legal and Constitutional knowledge of the people writing in apocalyptic language on this thread.
The word “Constitutional” isn’t some magic spell that means the person taking the position farthest on the left automatically wins.
burnspbesq
All due respect, John, I think your reaction is premature and over the top.
I like that my government is open to thinking about outside-the-box solutions. I am willing to contemplate the possibility that the criminal justice system is not well suited to handle a narrowly defined set of circumstances involving terrorist activities.
That said, there are certain lines that must not be crossed. We cannot ever have British-style preventive detention. The Fourth, Fifth, and Sixth Amendments say what they say, and they are sacrosanct. The current system of military commissions is a travesty, and must be scrapped. We have civilian trials for suspected terrorists and we have general courts-martial for enemy combatants accused of violations of the law of war. There is no third option.
Within those boundaries, I don’t know why we can’t have a conversation about alternatives to current policy. And I can live with a certain amount of pandering to the pants-pissers if it gets the Administration some freedom of movement.
wrb
At first look this appears pretty minor to me. He’s talking about using the existing public safety exemption and going to Congress to make sure they support the interpretation.
The problem I had with the Bush approach was that they felt they could make the changes they wanted without regard to the law or congress. This isn’t that.
I guess I don’t see Miranda itself as very important. If you haven’t gotten the gist after however many thousand times you’ve heard the recitation on TV, you aren’t going to.
What I found so offensive was the administration’s insistence that the executive could take away any right arbitrarily.
I see this as smoothly taking away a club with which the right has been beating liberals and the administration- to good effect with the public- without actually doing easily identifiable damage to anyone’s rights.
Maybe I’ll see something I’m missing as the debate unfolds.
kay
@Martin:
Here’s the exception. You can decide if he’s simply asking Congress to codify or asking Congress to codify his broader interpretation:
New York v. Quarles: the Court created a “public safety” exception to the Miranda requirements for situations where a threat to public safety compels the police to question a criminal suspect immediately.
In Quarles, a young woman approached two police officers and informed them that she had just been raped. She described the perpetrator and told the police that he had just entered a nearby supermarket and that he was carrying a gun.
A policeman — Officer Frank Kraft– went to the store and discovered a man — Benjamin Quarles — who matched the description given by the woman.
A chase ensued and Kraft temporarily lost sight of Quarles. Upon finding Quarles again, the police arrested him. Kraft frisked Quarles and found an empty shoulder holster. After handcuffing Quarles, Kraft asked him about the location of the gun. Quarles responded “the gun is over there,” gesturing to some empty cartons. Kraft retrieved the handgun and then formally arrested Quarles and read him his Miranda rights. Quarles waived his rights and then admitted that he owned the gun.
cat48
@zhak: Excuse me? Got thru WW II? Japenese internment camps ring a bell?????
Corner Stone
@joe from Lowell: I think we’re talking about two different things. The immediacy of the public exception (re: a loose firearm) vs the having a suspect in control in an environment unrelated to the potential crime scene.
Or as kay alludes to – hours, or some delay, later.
joe from Lowell
Well, yes, but that goes both ways.
To a certain number of posters here, anything Obama does that they’re critical of is a reason to vote against him.
A fair point, though, that one can be critical of Obama without it meaning one has to welcome a few more years of Republican government.
kay
@burnspbesq:
for situations where a threat to public safety compels the police to question a criminal suspect immediately.
I think that fits Times Square. They didn’t know if there was another bomb. I imagine he’d rather have a law than to rely on the exception. I get that, and I like that he’s going to Congress. I do think it merits some questions though.
Allison W.
Ok. I get that this upsets the Left and Libertarians. What bugs me is that some of you just boil this down to pandering. Pandering for what? the majority of the country thinks Obama knows better on national security, and only an idiot thinks that the GOP will come around on other issues if Obama just gives them something they want.
This is too serious of an issue to reduce it to ‘Obama wants the Right to like him’. This is his decision and Holder’s decision, so lets stop with the lazy analysis. To say its just pandering is to say this admin doesn’t take national security seriously – just like every other Republican has been saying.
So yeah, get mad, call them out, but this is not about pandering.
burnspbesq
@kay:
I think you were responding to someone else, but I take and agree with your point about codifying the exception. This is an area where I don’t think there’s any doubt that a bright-line rule would be helpful. What that bright-line rule should be is something that ought to be talked about – at length if necessary.
joe from Lowell
Corner Stone,
Would a loaded gun dropped into a front yard next to a busy sidewalk cease to be a public safety threat because a few hours have passed, and the guy who dropped it is at a police station?
How about a bomb?
I think the proper line should be something like “a reasonable belief on the part of the arresting authorities of an imminent, material threat that is in existence at the time of the arrest,” with the passage of time without the discovery of that threat serving to erode the reasonableness of the belief that there is an imminent threat.
Needs work, but something along those lines.
kay
@Corner Stone:
Holder was very specific about how long they are waiting. I can’t find it, but I read it last week.
I think my only disagreement with the surprise at Holder’s actions is….the surprise at Holder’s actions.
He’s a prosecutor. He wants to get everything in. He’s not really in the business of assisting the defense. It’s adversarial. He’s going to push and they’re going to push back. Am I shocked that he wants every advantage?
Um, NO. He’s an advocate. I recognize that he has a duel duty, to uphold the constitution while zealously pursuing convictions, but he’s simply going to say that he believes the public safety exception fits, and he wants that written into law, and that’s going to be persuasive, particularly as he is going to Congress, and being above-board.
Corner Stone
@joe from Lowell:
I think it would still be a “threat”. I for one am just not sure it would still fit into the exception part of Miranda.
But I’m not using apocalyptic language about it. I’d like to know more, but start from the position of authority overreach is unacceptable. And this seems like a stretch of existing usage, at least to me.
Corner Stone
@kay:
I guess that goes to the question of should we have an AG who is the “top prosecutor of the government authority”, or the “top upholder of the law of the government”?
Or words to that effect and question.
I’m not sure I want him to be a “prosecutor” by default, but rather the person who defines how it’s enforced, etc.
Pretty broad language there, I know.
Brien Jackson
@kay:
Of course it merits questioning, but for that we have to wait and see exactly what the proposal is. This generic freak-out in some quarters is just embarrassing. FFS, it’s not at all impossible that bright-line rules for the exception could be helpful for civil libertarians, if done right.
Bill E Pilgrim
@joe from Lowell:
Have you actually seen that sentiment expressed very often here?
I sure haven’t. I assume that John Cole for example will vote for Obama next election, and I’ve seen people be excoriated here for criticisms less severe than what he wrote here.
It’s a point that I’ve made, Cole has made, and Glenn Greenwald has made ad infinitum. I’d say it’s more than a matter of “can”, I’d say it’s essential.
tc125231
Dunbar
This seems like an odd place to draw the line on civil liberties. Personally, I don’t have a problem with the “where is the gun”, public safety Miranda exception. And I don’t think its bonkers to analogize “where is the gun” to “are there are any other bombs?”
Moreover, from a checks and balances perspective, it’s a good thing almost any time Congress defines executive power. At some point, we are going to have a Republican president, and I would prefer to have a law on the books that clearly defines, for instance, the public safety exception under Miranda in regards to terrorism, than allow President Palin or Romney to do whatever the hell they want.
It’s also ironic that when Bush was in office, everyone was so indignant that he didn’t confer with/defer to Congress. Now that it’s Obama, the guy is ostensibly flushing all our liberties down the drain by using Congress as a co-equal branch.
Corner Stone
@Bill E Pilgrim: It’s a rhetorical device used by John Cole when he wants to limit the frame of acceptable criticism of Obama.
Please see here for reference.
But I didn’t expect you to know that, and agree with your expressed sentiment about criticism.
Some here do not care for it, unless it’s on their specific terms.
joe from Lowell
kay writes:
Frankly, the fact that this prosecutor is going to Congress to try to get his interpretation codified, rather than just using it until he gets stopped, is pretty remarkable.
Corner Stone,
And what seems like a stretch of existing usage? Are you talking about the amount of time? We don’t even know what these two suspects were asked.
Let’s keep an eye on this one, but don’t dust off the protest puppets quite yet.
kay
@burnspbesq:
I don’t do a lot of motions to suppress, because my kids dutifully check the Miranda boxes (as ordered) when they write their elaborate and damning statements, but don’t you think he’s in on these two cases anyway?
I don’t know. I’m a bleeding heart liberal and I buy it in Times Square. I think they say they were looking for Bomb Two. That’s plausible.
General Egali Tarian Stuck
Who ever heard of such an outrageous, obeesence thang? I mean, reaching out to congress to make laws and shit. And Constitutional ones to boot? Gawd hep us, George Bush is still in the WH. He just has a better tan.
joe from Lowell
kay,
I’d be interested to find out what “looking for Bomb 2” allows you to ask.
I think the absolutely essential point here is that the police can’t be allowed to start gathering evidence about the underlying crime before reading Miranda rights, and that pretextual “public safety” questions not be allowed in through a loophole.
NobodySpecial
@Bill E Pilgrim:
A couple of random commenters have made that argument. Unfortunately, some other regulars put all criticism of Obama’s positions into the same box with those yahoos.
And yeah, they’re never gonna give Cole too much shit, he might take away their extra-tall soapbox.
Bill E Pilgrim
@Corner Stone: Actually I pretty much assumed that and was speaking of those you were making fun of, not you. Or decided it didn’t matter which way you meant it, and that you’d probably let me know ;)
Corner Stone
@joe from Lowell:
Agreed. By the way, how are those conversations with Pinochet coming along?
joe from Lowell
That’s fair. I’ll just point out that the Republicans have adopted a purposely strategy of trying to suppress Democratic enthusiasm by purity trolling in liberal waters. Those of us who are especially offended by such dirty tricks can go overboard when we seem to see their memes spreading.
General Egali Tarian Stuck
@joe from Lowell: That’s right. So long as they don’t use the info, or develop from what is said, into later incriminating evidence and use it at trial, then I don’t see it as unconstitutional. Or violating Miranda. They will need to keep it straight forward, and simple to apply only to the proverbial ticking time bomb scenario, and not use it for a later trial. The very fact they made the arrest means they already have incriminating, or probable cause evidence.
And Another Thing...
Disclaimer: I don’t play a lawyer in any venue. My understanding is that Miranda is the tripwire line that protects us from self-incrimination. If you’re not mirandized then evidence you give can’t be used against you. The trade-off is between getting information about potential threats to the public and having evidence to convict that will pass Constitutional muster. That’s a rational public policy question.
This isn’t about torture, kidnapping people & sending them to those who will torture, trying to place “suspects” in places/circumstances where they have no recourse to defend themselves from the power of the state, spying/eavesdropping on our own citizens without warrants, etc. etc.
Holder is correct in saying that this issue should go to Congress. I’m no fan of Congress these days, but this should be debated in public rather than “decided” by the “decider” in secrecy by an administration that was run by a demonstrably thuggish group who believed that there are NO LIMITS during “a time of war.”
Corner Stone
@Bill E Pilgrim: I gathered as much but I figured I would use you to further my rhetorical campaign.
Hope you don’t mind I didn’t at least buy you dinner first.
joe from Lowell
General ETS,
What you just described – don’t use any evidence gathered before Miranda – is the Miranda Rule. This is about an exception to the Miranda Rule – when can such evidence be used?
In the Quarles case that kay described, the police were allowed to use the gun, and the suspect’s statement indicating that he’d put it there, as evidence in the trial.
MikeBoyScout
Clearly Miranda is outdated and needs to be thrown on the dust bin of history.
The constabulary of Seattle are showing us the way forward.
Rather than all of this due process mumbo-jumbo, we’d all be safer and living in paradise if we empowered our gendarme with training to act like this hero in Seattle.
Imagine the benefits of being able to throw suspects to the ground then hitting the suspects in the head and stomping on them and interrogating them with such demands as
“You got me? I’m going to beat the f***ing Mexican piss out of you homey. You feel me?“
General Egali Tarian Stuck
@And Another Thing…:
Careful, you could cause some puma’s to lose their erection.
Bill E Pilgrim
@Corner Stone: No but I do expect my $75 left on the night stand.
By the way I heard that Recker announced that he’s going to the UK for his next vacation after he heard that they have a Hung Parliament.
kay
@joe from Lowell:
I don’t know enough about the scope of the exception to speculate, but I bet Eric Holder knows.
Corner Stone
@General Egali Tarian Stuck:
It means nothing of the kind.
HE Pennypacker, Wealthy Industrialist
@joe from Lowell: I think you’ve had it right throughout this thread.
John Cole
Not only is this a substantial change, but it was politically stupid. Now all the nitwits screaming WE SHOULDN’T MIRANDIZE SHAHZAD all week can point to this and blur the lines and say Holder agrees with them.
On top of that, anything Congress does will be visited by a radicalized Supreme Court which you do not want to allow anywhere near issues like this. Not to mention, the court will probably shift noticeably to the right when Obama appoints Kagan.
Christ.
burnspbesq
@kay:
That’s funny, in a sick sort of way. But yes, based on what is public knowledge I think this was a good interrogation under existing law and everything they got out of it is admissible.
John Cole
@tc125231: The difference is I am not going to sit home and pout and let the Republicans make more advances. I can still recognize that the obama team, while flawed, is better.
Thoughtcrime
Obama has a Muslim sounding name. His birthplace is suspect (Kenya, land of terrorists?) since he won’t show his long-form birth certificate. He’s also known to have “palled around with terrorists”. Now he’s promoting un-American laws and restrictions on civil liberties and terrorizing the populace to cower the people into submission. He should be the first to have his Miranda rights revoked under such a proposal.
We are no longer at the thin end of the wedge.
General Egali Tarian Stuck
@joe from Lowell: Not a lawyer, but seems to me the example is a bad one. I would oppose this rule, and doubt it would get through congress or the courts if like Kay’s example. Or, take the Times square guy, they already had a ton of evidence against him to make the arrest, and want to know if there are any more bombs and bombers he knows about still on the loose and planning on setting off more bombs.
If he tells them without being mirandized, any information gathered from that info cannot be used against him, say for conspiracy charges, or they find out he was the ringleader, or any additional evidence not already in hand. I would oppose any such rule exception if said info was used against him. I admit, such a new rule exception could leave open for abuse. And what to do with any others captured presents a dilemma of what could be admissable against them. It needs to be strictly for preventing an imminent attack from occurring or, “public safety.
joe from Lowell
@H.E. Pennypacker,
Why, thank you. When the point you’re making is “I don’t know enough to have an opinion, and I need to know more,” it’s easy to be right!
General Egali Tarian Stuck
@Corner Stone: Sure it does, the legal system we have is pretty good and sifting out evidence that is improperly obtained, and if such a rule is abused, then the officials abusing it must pay the piper. And charges dropped/
burnspbesq
@John Cole:
Srsly? I am really at a loss to understand this Stevens = Brennan meme that has emerged in the wake of Stevens’ retirement announcement. Stevens is, and always has been, the qunitessential Rockefeller Republican. He is only the “left” on the current Court because the Court has moved a long way to the right during his tenure. And if you think someone significantly to the left of Kagan, Wood, or Garland can be confirmed, I’d really like to see your strategy memo.
joe from Lowell
John Cole
Not only is this a substantial change,
Not only is WHAT a substantial change?
Do you realize, John, that you have yet to articulate what you even object to?
Mike in NC
Now we’re a nation of Hannity & Limbaugh. Good times.
Bob In Pacifica
Let’s do a little analysis.
The Obama Administration isn’t doing this to appeal to the Rightwing. They’ll blame him for anything that happened in the last thirty years. And by doing this the Obama Administration guarantees that liberals and progressives will stay home and sit on their hands. It is totally against their political interests in being Republican Lite on these issues.
So why are they doing it? Because the “administration’s complete obeisance to the national security state” is because they are, in fact, obedient to the national security state.
People don’t want to look at the inner workings of the national security state, the hows and the whys of it, though.
That would be conspiracy theory.
joe from Lowell
General GTS,
Uh, kay’s “example” is the actual case that “got through the courts.” That is the case in which the SCOTUS ruled that the gun and the suspect’s statement about its location were allowed.
When the police are asking about legitimate public safety threats, the answers and the evidence gathered from them CAN be used. That’s the point.
General Egali Tarian Stuck
LOL. based on what exactly?
FlipYrWhig
@John Cole: What is the source of the Kagan worry? Is there someone besides Greenwald who has an issue with her thinking?
General Egali Tarian Stuck
@joe from Lowell: I reread your and kay’s comment and I interpreted wrong. I see what you all are saying, and agree. sorry bout that.
asiangrrlMN
@Bill E Pilgrim: agree with you. It’s the politics that offend me. Stop being such fucking pussies. Someone has to clearly tell the American people that we cannot prevent every terrorist threat. Period. I know it’s political suicide, but someone needs to be a fucking grownup about this.
burnspbesq
@Bob In Pacifica:
You call that “analysis?”
I call it nonsense.
You want to do some analysis? Cool, let’s do some analysis.
Let’s start by defining our terms. When you say “national security state,” what exactly do you mean?
Then you can move on to explain how Obama et al can be obeisant to the national security state when (if you mean what I think you mean by that term) they control the national security state (or, alternatively, they are the state).
cat48
Yea, I heard Kagan was the devil incarnate. Lot of strawmen built about her since she doesn’t actually have a record to examine. The most absurd one is the advisory council to Goldman where she worked (1) one day a yr. Reminds me of when Palin/McCain went from Obama spending (1) day a yr on the 2 boards he was on w/Ayers and the fact that Obama and Ayers lived in the same neighborhood and announced he was “palling around with terrorists.” Exact same idiocy involved.
She also loves white men only because that is all she hired while Dean of Harvard or something.
There is no way in hell that anyone knows what might happen if whomever is nominated. NO ONE.
MikeBoyScout
It’s really a pity that the AG, instead of playing along with the Miranda is dangerous meme, can not simply and repeatedly remind the Village that despite the asshattery of Gulliani and Liz Cheney, the rights which Miranda warnings inform suspects exist and are applicable whether or not the Miranda warning is given.
Providing Miranda warnings not only inform suspects of these rights, the giving of the warning makes prosecution of the suspect more sound.
General Egali Tarian Stuck
I think when you catch a guy trying to set off a bomb in a public place, even an incompetent bomb, it is not unreasonable to ask if he has any friends getting ready to do the same. Anything much outside of this scenario, I would not support such a rule change. That is not being sissy, that is common fucking sense.
Bill Murray
Where is there any evidence that our current use of Miranda is not working? Being criticized by Republicans is not exactly a crisis for the country. I fail to see how the threats that we now face are really much different than in 1984, and are worthy of not ensuring all people know their rights as human beings.
In any case didn’t Obama signal his disdain for the civil liberties crowd when he voted for the FISA telecom bill as a Senator?
Corner Stone
@General Egali Tarian Stuck: Do you even know what country you’re in?
Being arrested is evidence of absolutely nothing. At all.
Bill E Pilgrim
@John Cole:
This is exactly what amazes and depresses me. It’s like the “even the liberal New Republic/Camille Paglia/etc” list gets “The White House” added to it.
Obama and this administration sometimes just slam it right back to the right wingers and refuse their framing of the issues, unapologetically, aggressively. Other times, it’s like watching some GOP senator change policies to be more similar to Rush because someone criticized him.
GregB
Whenever I hear: 9/11 changed everything.
I think score one for Osama Bin Laden. His plan worked like a charm.
Bill Murray
@cat48: so you didn’t think Alito and Roberts would rule on SCOTUS as they expressed their opinions in writing and have subsequently done?
General Egali Tarian Stuck
@Corner Stone: You have to have probable cause (evidence) to legally arrest anyone in this country. If you don’t, then you are making an illegal arrest. Now in practice, yes, that gets abused, which is why we have courts and judges to correct those abuses, or mistakes, depending. It’s not a perfect system, but a pretty good one as compared to other countries.
wrb
@asiangrrlMN:
I’d agree fully if the American people were the only audience. There is perhaps some utility in not encouraging the terrorists. “We can’t stop you, aggghh!” might help the hesitant terrorist with the courage thing. Imaginary invulnerability can deter. Not everyone, but maybe one that counts.
I also fear that the reaction to a public admission that we can’t stop everyone would be the public demanding that more liberties and rights be sacrificed.
joe from Lowell
Bill Murray
Where is there any evidence that our current use of Miranda is not working?
This is our current use of Miranda. The underpants bomber was read his rights 50 minutes after his arrest, and the NYT bomber a few hours.
MikeBoyScout
It’s really a pity that the AG, instead of playing along with the Miranda is dangerous meme…
Have you considered the possibility that career prosecutor Eric Holder, who has never held elected office and is not a politician, is doing this because he genuinely thinks it’s the best way to handle terrorism arrests?
Hunter Gathers
@John Cole:
Kagan’s job will be to go to work on Kennedy and get him to stop siding with the Roberts/Scalia wing of the court so damned often.
RBC has a good take on Kagan.
Bill Murray
@General Egali Tarian Stuck: It’s being a sissy, well more of a scaredey-cat, no matter how much you would like it not to be.
NobodySpecial
@General Egali Tarian Stuck:
Except, of course, they never DO catch the terrorist over the smoking fuse. Like in the case of the Dipshit Bomber, where they caught him 50+ hours after he parked the car. Quite frankly, if any of his buddies were planning something similar, they would have done it two days earlier. Now all we have is the top law enforcement official of the land saying that vague ideas about threats make it okie-dokie to potentially revoke the Fourth Amendment for terrorists.
General Egali Tarian Stuck
@Bill Murray: LOL, you must be an internet tough guy, huh?
joe from Lowell
I think when you catch a guy trying to set off a bomb in a public place, even an incompetent bomb, it is not unreasonable to ask if he has any friends getting ready to do the same.
It’s being a sissy, well more of a scaredey-cat, no matter how much you would like it not to be.
Wait a minute…really? You think it’s being a “scaredey-cat” to question suspects now? Really?
Now, is this only in terrorism cases that it’s evidence of a personality flaw to question suspects, or should we not ask, say, extortionists if they have confederates as well?
You’re taking your argument to ridiculous extremes.
General Egali Tarian Stuck
@NobodySpecial:
What we have is the top law enforcement official of the land saying he wants to go to congress to maybe get a law passed that will not violate the fourth amendment, as some of our esteemed BJ attorneys, ie kay and joe have pointed out, it is not that far fetched a concept already in practice and lawful.
But yo and behold, Obama is just as bad as Bush, for doing something the right fucking way.
joe from Lowell
Oh fer chrissakes.
joe from Lowell
Uh, I’m not an attorney.
joe from Lowell
I think there are people who have a story they want to tell, and aren’t terribly concerned or knowledgeable about the actual facts and issues being raised here.
Let’s not turn into the teabaggers quite yet, ok? Nobody’s banning guns, and nobody’s abolishing the 4th Amendment, no matter how awesome it would be to have a big protest.
kay
@Bill E Pilgrim:
But that’s what happened. Whether or not it advances a Republican meme, that’s actually what happened.
Eric Holder relied on a case law exception to Miranda when he questioned the alleged bomber prior to reading him Miranda.
He’s now asking Congress to codify that exception.
You’d rather he alter events to halt a GOP political attack? It’s what he did prior to the political attack. That would seem to indicate he thought it was necessary. Again, you can certainly object to his reading of the situation, but it wasn’t political.
He was asked a question. He answered it. You can certainly object to 1. his delaying the reading, and relying on the exception, or 2. his asking that Congress codify the exception, but asking him to consider the political ramifications before he answers a question seems to work against reality and truthfulness.
Bob In Pacifica
burnspbesq, Mr. Cole said that the Obama Administration is obedient to the national security state. Is it?
They are either obedient to the national security state policies because they control it now and they want to continue the policies of Bush and somehow accrue benefits from that control, or because the national security state/military-industrial complex essentially runs our politics and no matter who is elected we get the same thing.
So we are only arguing about what road we take to get to the same place.
So cui bono? Who are the winners by the current situation? Big Oil? The military? A few Democratic politicians may get some graft but how does that help their constituency? Are you suggesting that the entire Democratic Party does not serve its constituency?
We seem to keep having wars in places where brown people live over oil. Or places over which oil companies want to build pipelines to carry oil. And places where the rationales for war all turn out to be lies. So for whom is the military working?
If all politics, by the nature of our political system, gets us to the same place, then is it because it happened by accident that Dems became like Republicans or because it happened by design? And if it happened by design, then who is doing the designing? And for what purpose?
In a free market, if one brand controls a product, then its competitors offer a different product. A different flavor. And if the brand that’s been controlling the market isn’t popular with the consumer, other companies offer something else. There is a profound lack of support for either Iraq or Afghanistan, and yet the wars churn on and on. What isn’t free about American politics that opposition to these wars isn’t reflected in Washington; why don’t the Dems seize on this?
Why when a Dem is elected President he turns out to be right of center, he continues Republican policies, or in the case of Clinton, performs as a Republican (trade agreements, drug wars home and abroad, welfare “reform”, the fracturing of Eastern Europe, etc.)?
The idea of “conspiracy theory” seems to have gotten you upset. Do you have a non-conspiracy theory to explain our political system?
General Egali Tarian Stuck
@joe from Lowell:
I hereby request the mighty FSM to appoint us both one for this thread, honorary of course.
Brachiator
@DecidedFenceSitter:
How, exactly, do you gut Miranda “legitimately?”
What the hell is wrong with these people? The Obama administration seems to excel in the art of advance capitulation. And suggesting that there is some value in weakening Miranda makes you wonder whether Obama is a deft constitutional scholar or an inept reader of the political landscape.
MikeBoyScout
@104 Joe from Lowell,
If Holder genuinely thinks one our most significant problems with international terrorism is the Miranda warning and the 1984 exception, we’re in worse trouble than I thought.
I believe that Holder’s opining about modifying the Miranda warning exceptions is more about politics and the Village buying in to this nonsense than it is about the need for a change in policy. There have been do reports regarding DOJ working with the Senate or House judiciary committees to move such a proposal in to a bill.
But I’m sure Lierman will seize on Holder’s remarks and update his TEA act proposal accordingly.
wrb
@Brachiator:
How, specifically, does what he proposed “gut Miranda”?
kay
@General Egali Tarian Stuck:
Eric Holder doesn’t want to rely on that next time. He wants to codify the exception to Miranda so he can use a statement if he needs it. He’s not talking about the last case. He’s talking about the next one. That’s why he’s going to Congress.
He thinks there’s a public safety interest. That’s his job. He represents the United States. I can absolutely second-guess that, but I have to allow him the basic prosecutor’s role. I mean, that’s what he is. Am I shocked he’s going right to the wall? Hell no. Anymore than I’m shocked if the defense does. I’d be shocked if he didn’t.
He has a public safety duty. That’s fact.
General Egali Tarian Stuck
@MikeBoyScout:
I think you might be right. As there are already exceptions to Miranda in certain situations, it would seem moot to announce this. And for those hollering about this is bad politics, while true in the netroots nation, not so true outside of it. Or, a wide majority of the public. Imagine that, Obama is a politician. Tempest in a Political Teapot.
NobodySpecial
@joe from Lowell:
You missed a word.
General Egali Tarian Stuck
@kay:
But what about his duty to left wing bloggers?/snark
gurglebleg
Leave the party then. Both parties are horribly corrupt and engaging in conduct unbecoming. Our founders would be ashamed of this new low in civil liberties. I voted for Obama to return to rule of law. Instead what we’ve got is yet more lawlessness, only this time enunciated better and with a larger vocabulary.
Corner Stone
@MikeBoyScout:
I think Bruce Schneier calls it Security Theater. Sounds about right.
cat48
@Bill Murray: The Supreme Ct is the last stop for someone’s career so it could go either way. It has in the past anyway.
joe from Lowell
MikeBoyScout,
Nice straw man.
I’ve never seen Holder behave in a way that would make me think he’s a political animal. Quite the opposite.
TuiMel
@tc125231:
I was wondering if he was serious or baiting those of us who sometimes voice doubts about Obama’s policy choices and strategies.
There has been info out there about the Obama Administration’s use of the “national security exception” for Miranda. Holder had a little expository exchange w/Di Fi about it. I have concluded that national politicos are under the “24” influence when it comes to looking for ways around Constitutional protections for terrorists – suspected or otherwise. It saddens me that the best I feel I can expect now is that there is mitigation of this stampede of fear. But, Obama has demonstrated no interest in letting go of many of the excesses implemented by Bush and Co. Does that make him worse than Bush? Not even close. Still, he loses stature in my eyes when those acting in his name (Holder) fold in the face of political pressure rather than pushing back more forcefully.
wrb
@MikeBoyScout:
Trixsy debater.
Where was it said or implied that he thinks it is “one our most significant problems with international terrorism”?
Minor problems should be ignored?
kay
@General Egali Tarian Stuck:
I probably don’t agree with codifying the public safety exception to Miranda. Do I expect Eric Holder to assist in the defense bar’s objections to his attempt to codify it or is he going to zealously try to gather the tools he thinks he needs? Nope.
He’s not imposing this by fiat. He’s saying “I used what I had, I’ll use it again, but I prefer a bright-line rule”.
Surely he thinks his reading of the exception is lawful. If he doesn’t, he just announced his own past law-breaking on television, and assured everyone he intends to continue to break the law.
eemom
I concur with Kay and Burnsy. This post is way over the top.
And I am really disappointed to hear John mindlessly parroting Greenwald’s absolutely baseless “court will shift to the right with Kagan” tripe.
Bob In Pacifica
burnspbesq,
I like to think back to the great FISA debate in Congress in 2008, when Obama changed his mind after some mechanical problems on his campaign plane and the Secret Service turning off the metal detector in Dallas.
Let’s for a moment believe that Obama really had a change of heart over the FISA bill and thought, with due consideration, that the NSA and all those other iterations of our intelligence community really do need to have flashlights with the proper wattage to look up every citizen’s asshole. Or let’s presume that Obama thought that it best served his craven political interests. Let’s not for the moment presume that there was some kind of pressure from the national security state put on Obama to flip his vote.
Let us assume, as you seem to be indicating, that the power of the national security state accrues to whomever is in the White House. Let’s roll out those old diagrams of our government from grammar school. The three sections of the federal government. The President runs the executive branch. He can potentially abuse these powers. It’s under his control.
So how come almost all the Republicans voted for FISA? There was a really good chance that a Democrat was going to be elected to the White House in 2008. Why hand over all that power to a Democrat? Why give Obama the flashlight?
Why? Because the power doesn’t accrue to Democrats. It doesn’t even accrue to Republicans, per se, as a political entity, although it’s often hard to distinguish between the Republicans and the national security state. It’s easy to assume that Republicans are self-serving when cutting back the civils rights of the citizenry because we can see Dubya, spawn of a CIA/oil man/Wall Streeter, as serving his own interests in doing so. So why is Obama serving those same interests? Is our political system a fraud because all the Democrats who run for President are frauds, or is our political system a fraud?
And why do Republicans assiduously avoid the NSA wiretapping and invent happy horseshit like death panels?
I’m old enough to remember politics in the sixties. Nowadays politics is more like professional wrestling. A predetermined outcome in the ring with a lot of useless shouting in the crowd.
General Egali Tarian Stuck
@kay: I am glad you are on this thread kay, and blog:)
Now me dog moans for a walk, so carry on bj, we will finally skin this chicken someday.
General Egali Tarian Stuck
@eemom: John Cole is mysterious, if nothing else. Sometimes it is hard to tell if he is shucking us, or serious. It is his blog to do one, the other, or both. I just work here.
kay
@eemom:
As you know, I too think the court will shift to the Right with Kagan, but I admit it’s baseless conjecture, and purely based on what I see as her ass-kissing to the powerful :)
I think she’s a disappointing, safe, conventional pick and they didn’t want a political fight, so went with the conventional wisdom, because it was “her turn”.
I don’t have to be fair, eemom. I’m just a commenter.
TuiMel
@zhak:
Unless you want to quibble about those little things called internment camps.
We trample liberties of those of whom we are afraid when we are afraid. Then we look back in shame and sorrow.
This morning I heard on NPR that UCLA is granting honorary degrees to Japanese students who were driven from the university in the days of panic and opportunism that engendered Executive Order 9066.
chrome agnomen
@Bill E Pilgrim:
damn! that comment almost made me bust a nut!
NobodySpecial
@eemom:
Gotta agree with Cole for one reason and one reason only.
Whomever gets nominated will probably not be able to sway Kennedy as much as Stevens could. That goes for any ‘possible’ nominee and even the ‘impossible’ nominees – if only because Kennedy and Stevens have a longstanding relationship that they can’t mirror coming into the Court as a brand new justice.
But go ahead and yell. Real loud.
Three-nineteen
@wrb:
How does this gut Miranda rights? Well, let’s see. The case law says that a statement made to a police officer less than 5 minutes after contact/arrest is admissible (I happen to think that’s bullshit too – where in the Constitution does it say that a your rights can be taken away simply because someone else may be in danger? but let’s put that aside). Sounds reasonable, right? The officer thought a loaded weapon was around, people were in immediate danger, they were still at the scene, and he asked the question right before he Mirandizes the guy.
Holder takes that example and uses it to question the Times Square bomber for 50 minutes before reading him his rights. Not less than 5 minutes, 50 minutes. In 50 minutes, there wasn’t time to take 30 seconds to Mirandize him? This isn’t a case of police officers spontaneously asking a question because people may be in immediate danger. It’s the FBI knowingly questioning him without reading a suspect (yes, he’s still a suspect) his rights in hopes that the guy doesn’t know or remember all his rights so they’ll get something out of him. And then they want to use it in court.
And now Holder wants this formally written into law, I assume saying that the police can question a suspect for “a reasonable time” before Mirandizing him, in cases of “public safety”. So in 5-10 years “a reasonable time”, which was less than 5 minutes, and is now up to 50 minutes, will turn into 24 hours. Or 72 if it happens during a long weekend. And SCOTUS will uphold all of this, because of “public safety”. Don’t get me started on how the definition of “public safety” will change.
John Cole
It isn’t just Greenwald. There have been dozens of stories about her being either an unknown quantity or to the right of Stevens. Neither is acceptable.
And of course this is a change in policy regarding Miranda- why else would he suggest he would be open for Congress to change it. Do you think he was hinting that Miranda needs to be bolstered? Do you think any change congress makes will be better? You do remember the Military Commissions Act.
cat48
@eemom: Are you the one that attended the same highschool as her? Someone who comments here did. Just curious. I don’t know enough about her to even form a valid opinion about her except I know she’s no damn Harriet Myers sp? She seems very well qualified. I also find it disappointing folks are so easily persuaded by others.
John Cole
@Three-nineteen: Thank you.
General Egali Tarian Stuck
@kay: If she is picked, I want her to be questioned ruthlessly, not only by wingers, but also, and more importantly by dems. That is really the only time we can get a decent idea of her judicial philosophy, since she is not a judge. Though I doubt she will shift the court to right, but I too have nothing really to base that on. But if she doesn’t measure up in her confirmation hearings, then I will oppose her. The attempts to pre smear her by Greenwald and his minions is a croc imo, as stated previously.
We DID elect Obama to make these choices, and it is his to make, but senators can vote the way they want. And that is a good thing for life time SCOTUS members. If what we learn confirms your suspicions, then I will join you and others to lobby for her defeat in the confirmation vote.
kay
@Three-nineteen:
I don’t think he’s pretending there wasn’t time. He knows the rule. He’s saying he relied on the public safety exception, and that he intends on relying on that if he wants to use the statement. He believes ( I think you have to grant him this, until it gets to court) that his interpretation was lawful.
He’s rather have a law of course, but he’s not being dishonest. He’s pretty much laid it out.
MikeBoyScout
@127 joe from Lowell & @129 wrb,
Fair enough about the criticism of my premise.
I don’t know anything more about what Holder thinks about Miranda warnings and their impact on public safety beyond what he said.
I am unaware of any situation since September 11th where providing a suspect a Miranda warning endangered public safety or hampered an investigation. If you are aware, fill us in.
If my recollection is correct, however, the proper response of the AG to badgering Villager questions about Miranda warnings interfering with investigations and keeping the public safe would be ‘It has not been a problem. We don’t foresee it being a problem. And continued discussion of it being a problem hampers having discussions about the serious problems we do have.’
I like and respect AG Holder, but his utterances today about the need for Congressional modifications to Miranda were ill thought and bordering on ridiculous, in my opinion.
kay
@General Egali Tarian Stuck:
I don’t think the confirmation process works, in terms of finding anything out, and I think she’s vulnerable as hell on the recruiting issue. They’re going to make her out to be full of shit, and a calculating politician, which is what she was, actually as a dean and college fundraiser.
It’s going to be brutal. She needs paragraphs to explain that. She thinks it’s a fundamental right but she played both sides? She’s not going to get paragraphs to explain. They’re going to discredit her.
I think she’s a bad pick, Stuck. I’m really disappointed.
NobodySpecial
I believe lots of people think things are lawful that are pretty awful, from holding US citizens in military jails to waterboarding. Unfortunately, this is going to get an added boost because he IS the top law enforcement official in the land. I’d rather Holder have just refused to comment.
srv
Since it was always easy for everyone to presume the worst in Bush and Cheney, consider applying that consistently. This unwarranted attack (what possible reason would the Pakistani Taliban have for blowing up Times Square?) provides cover for the current Nat’l Security Bitches to swing to the right for the midterms and look tough on terror.
It isn’t just the Geneva Conventions that are quaint anymore, the 4th and Miranda have just become political play things.
Paula
@MAJeff:
hahaha @ the mofo who doesn’t know basic history. But Obama must be more like FDR, no?
daveNYC
Why is some modification of the Miranda warnings even up for discussion? As far as I can tell, once they nabbed the guy, everything went pretty smoothly. They invoked the exception and he talked, they then Mirandized him and he continued to talk. What exactly needs to be modified?
General Egali Tarian Stuck
@kay:
That could be considered compromise. She has fought against DADT and all things related to that bigotry. She was also responsible for not losing federal funds for the university she was tasked to run. There are consequences to everything and usually compromise impresses me. But I just don’t know enough about her judicial philosophy to glean an opinion on her. I reject out of hand she could be a racist or doesn’t support civil rights, that is bullshit imo, and not supportable when taking her entire life into context. As far as the corporate charges, seem flimsy to me, and I don’t know of many people who operate in the public domain and mix it up, that doesn’t get some tangential association with bad actors. If it is more than that, then I will oppose her. Or, maybe we could scour the Nunneries for a clean pick.
I am surprised that nunneries is a real word. learn something new everyday.
Three-nineteen
@kay:
I think he not only relied on it, he is trying to expand it. And get Congress to put his expansion into law.
I guess I’m looking at it this way: why didn’t the FBI read the suspect his rights? It’s not like there wasn’t any time. The only reason I can think of is that the FBI was hoping the suspect didn’t know or remember exactly what rights he has, and wanted to keep it that way so they could get information about other possible attacks out of him. Fine, but then they shouldn’t get to use that information to prosecute.
The expansion comes in with intent. I haven’t read about the 1984 public safety exception case, but did the cop deliberately not read the suspect his rights to get the gun location out of the suspect? If not, it was a spontaneous question that came out of concern for the public and was not intended to deliberately deprive the suspect of his rights. The Times Square bomber situation sounds exactly the opposite of that scenario.
kay
@NobodySpecial:
Why would he refuse to comment? He wants to codify the exception. He’s now relied on it, twice. That’s what he said.
Look, I’m consistent. I don’t want a political prosecutor. I don’t want him announcing he’s launching investigations, or NOT launching investigations. You can’t assume he’s political and bad at politics. What if he’s just a prosecutor? Perhaps an overzealous prosecutor, one with whom you disagree, but where did all this intent come from?
Not from him. He answered a question honestly and completely, and made a request.
Corner Stone
@kay:
Plus, when she does her “balls and strikes” routine they are going to crucify her for not answering questions, as she said SC candies should do.
Hypocrisy – it’s only ok if you’re an R.
TuiMel
@kay:
Once Kagan is “picked” the horse is out of the barn. No amount of ruthless grilling is going to undo a nomination, IMO. If she is picked to pour on more oil on the already oily Orin Hatch waters, done deal. And, which Dems are going to deny their Prez a SCOTUS nominee? I would love to see Obama make a bold nomination, but apparently no one is confirmable who is a liberal. No one here has explained to me me adequately just why that is, but I am an idealist who has been voting on SCOTUS as issue #1 since Bush V Gore.
different church-lady
Jeez, you got punked by Ariana too?
Corner Stone
@srv:
Some of us have tried applying it consistently. And been excoriated for it here.
Corner Stone
@TuiMel:
As you well know, no one “better” than Kagan is remotely confirmable.
Brachiator
@kay:
Except that Holder isn’t simply the chief prosecutor.
As chief law enforcement officer for the United States, he has to consider all sides of legal issues, not simply act as a kind of Super DA, concerned with prosecution.
@wrb:
Three-nineteen lays it out well in an earlier post.
I also take exception to Holder’s basic premise. He says,
But terrorism didn’t magically come into being on 9/11. There have been terrorists threats before. And sadly there will be threats in the future.
Further, I don’t think it is as easy to carce out an exception for “terrorism suspects.” Would this include bombers of abortion clinics, people I absolutely despise, but who are as entitled to rights as any other criminal suspect.
Sadly, I have to say that I don’t trust the Obama Administration on their reasoning here. And I certainly don’t trust the Congress.
Either you have a right to remain silent or you don’t.
Corner Stone
@Three-nineteen:
It’s the public! The public exception! There’s something, somewhere, we MUST know the answer to! Right Now!
And somewhere Jack Bauer laughs it up.
TuiMel
@Corner Stone:
Edify me.
kay
@Three-nineteen:
We agree then. What we don’t agree on is that his policy objective of codifying the expanded exception has anything to do with the last two cases.
I don’t know. Maybe I live in some harsh world, but the prosecutor wants a codified rule so he can get a statement in if he needs it? Color me amazed. No shit.
It doesn’t mean he’s bad at the job. Next he’ll use the word “tool”. “I need this law enforcement TOOL”.
Too, you made the distinction, but it should be said, the rights exist independent of the warning.
Corner Stone
@Brachiator:
I agree. And that’s kind of the point about “Rule of Law” that a few people aren’t getting.
Corner Stone
@TuiMel: It’s self evident, eh? I mean, at least burnspbesq “gets” it:
Lamo punk
TuiMel
@Corner Stone:
Thanks. I thought I missed something as my work schedule is keeping me from checking in regularly.
kay
@Brachiator:
I couldn’t agree more, but I think if you only read criminal defense lawyers, you’re missing half the argument.
I’m just asking you to acknowledge that the state-side is a side. I tend to sympathize with the defense, but I don’t pretend the state has no legit interest, and are simply bent on destroying protections, or are purely political actors.
Granted, it’s dual duty. But the defense has no such duty. They just defend. They won’t admit there’s any public safety issue at all, nor should they.
If I said to you that I only listen to Patrick Fitzgerald when he reads the indictment, and then I go right to conviction, you’d call me crazy. Holder’s not a judge. He’s an advocate. He thinks he’s walking the line between “duty” and zealous. Can we give him that? It’s up to Congress and then the courts ( if he gets his codified exception) to say if he’s not.
Cacti
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.
Okay, so why does this get everybody’s panties in a twist?
tim
But John, you told us the other day to vote Democratic no matter what…
kay
@TuiMel:
My opposition to Kagan is unreasonable. I found out she wasn’t confirmed to the court Roberts was confirmed to, that federal court that leads to the SCOTUS, DC circuit? So she’s been on this track her whole career. I’m sick of that. I’m sick of this small club of powerful people promoting other people.
From that and some other things I decided she was the establishment pick and it was “her turn” and that makes me mad. I’ll probably be wrong and she’ll be this wild-eyed liberal, and you-all can jeer at me. I wanted a ballsy, unconventional pick. Scalia isn’t well-behaved. I want one like him.
Brachiator
@John Cole:
This is contradictory nonsense. Either she is “unknown” or “to the right of Stevens?” Or maybe none of the above.
David Souter was an unknown quantity, and liberals whined long and hard about how he was “obviously” a conservative stealth candidate. For example,
My gut instinct is to be in favor of anyone pseudo-kingmakers like Greenwald oppose. And I give Kagan bonus points for having clerked for Thurgood Marshall. I would prefer someone who has less of a Beltway/Clinton connection (Kagan served as Associate White House Counsel under President Bill Clinton) and who had a stronger judicial career.
But I am less concerned that she be reliably liberal. I want someone who is going to follow in the footsteps of Marshall, who was the only justice on the court who had ever defended someone accused of murder and who wasn’t in love with legal theory. I want someone like Souter, who told you what was most important to him, and what should be most important to us, in his opening statement to the Judiciary Committee.
FlipYrWhig
@Cacti:
Because a lot of people like to twist their own fucking panties and then complain about how it feels.
TuiMel
@kay:
I have read that Scalia’s behavior on the bench alienated Sandra Day O’Connor and failed to win the day on a number of cases on which she voted with the “liberal” wing. Ideally, I would like a persuader – but a persuader whose starting point is a decidedly liberal one. I need to see if I can find out more about Elena Kagan and those who also are mentioned as possibilites.
TuiMel
@Brachiator:
I love the Souter comment.
But you do know that he f*cked goats, don’t you?
Three-nineteen
@kay:
Not sure what you mean – I never said Holder was bad at his job. I was just trying to point out the real-life consequences of an exception that is being framed as “necessary to fight terrorism” when of course it’s not. What Holder wants is an expansion of what is commonly in use now. Otherwise we wouldn’t need another law.
burnspbesq
@Bob In Pacifica:
Fascinating theory, for which there is not one scintilla of evidence that isn’t equally probative of several other theories.
You do understand, don’t you, that if you’re right, the only sane course of action is emigration. Are your bags packed? Or are you merely spewing for the sake of hearing yourself?
grumpy realist
And even if Congress passes a law, the Supreme Court might still throw it out. Hard to see it happening with the deference to the Legislative branch and the rightward slant of the court, but anything obviously unconstitutional I’d expect to see slapped down.
What Holder is doing is attempting to codify this exception-to-Miranda which has shown up via common law. I look at him thinking to himself: “hmm, might be a useful trick to have in the toolbox, better make sure it’s sharp and ready. And I’d really, really like to know the boundaries of what I can and can’t do.” As far as I can tell, it’s Holder attempting to draw a bright line in a fuzzy area of law.
kay
@TuiMel:
Oh, you won’t like this, but Sandra Day O’Connor is not my favorite jurist. I know I’m supposed to like her because she was ostensibly this practical and humane person, and she went Left a lot, but I don’t see it that way.
I think I would piss her off regularly. She drives me crazy. I think she’s incoherent a lot. I like people who have some coherent philosophy. It can be loosey-goosey as hell, but something. She’s a freaking crap shoot.
Cacti
@grumpy realist:
This.
Brachiator
@kay:
The plain hard fact is that we live in a time when elected officials are actively seeking to destroy protections, and when the most ignorant, uninformed Palinistas and tea baggers yearn for a simple world when only the right sort of people have rights.
You don’t even have to resort to a “slippery slope” argument because the facts already show the dangerous ground on which we tread. During the Bush Administration, there was continual talk about how constitutional protections did not apply to non-citizens. And now you have people suggesting that under certain circumstances, American citizens can have their rights suspended as well.
And all in the name of public safety, although no one can point to a concrete example of where the public was harmed because a suspect was rightfully accorded his rights.
One of the reasons that constitutional protections exist because of the hard-headed acknowledgement that the state, often with infinite resources to use against an accused, should not be given the benefit of the doubt, but should always be given rules to follow.
True, but Holder also has to be an advocate for the citizens and their rights, suspects and their rights, not just for the state.
Thoroughly Pizzled
Interesting article on Kagan’s life as an undergraduate here.
Corner Stone
@FlipYrWhig:
I agree. No one here gives a damn about how the actual implementation of the law plays out.
kay
@Three-nineteen:
I don’t agree with your dismissive “of course it’s not”. And, sorry, if you’re telling me he’s stating that he needs a codified exception and he doesn’t, then he’s bad at his job.
He said he needs it.
You rely on the two cases where he states he used the exception. He says he relied on it. Are you saying he didn’t? How do you know that? If he got a statement, he’s going to say “oh, well, I have enough. I won’t bother trying to use that”?
I don’t have enough to convict him, just yet. I don’t know what he has, or what he needs, all I know is what he said he needs.
Three-nineteen
@Three-nineteen:
@Brachiator:
If everyone could please ignore the completely wrong statements in my comment above and substitute Brachiator’s comment, I would appreciate it.
burnspbesq
@John Cole:
Well, which is it? The probability of both of those propositions being true is infinitesimally small, and if you accept the former then there is no logical basis on which to assert the latter.
If you want to be against Kagan, one arguable ground on which to be against her would have to be based on the briefs that have been filed and the positions that have been taken on oral argument during her tenure as SG. You may find some shit there that disturbs you – I know I do.
Even then, it’s somewhere between a big stretch and utterly nonsensical to assume that those briefs and oral arguments represent her personal view. As SG, she’s a litigator, and she takes the positions and makes the arguments that her client instructs her to take. Anyone who was ever a competent lawyer (I’ll give Greenwald the benefit of the doubt on this point) understand this.
Greenwald’s opposition to Kagan is based on nothing that I find remotely credible. I’m surprised you’ve fallen for it.
General Egali Tarian Stuck
@kay: There is a long history of this phenomenon, of conservative justices becoming more liberal the longer they are on the bench. Souter and Stephens are good recent examples, as is O’Conner, though to a lesser degree, and from a more conservative starting point.
It hardly ever works the other way around of liberal justices going more rightward. I agree that I wish Obama would pick a hard liberal, that is known as that, but I reject the notion that Kagan will take the court further right as there is no historical evidence to support that, and in fact is historical evidence to the contrary.
The Overton Window on the court has shifted so far right, that Stephens is now considered a liberal lion, of sorts. He is not, especially on law and order issues. This is my mea culpa to you. I think she is not the right pick for this point in time to make inroads shifting the OW back leftward, other than for political expedience in tough pol times for dems right now. And maybe Obama’s personal fav, though a highly qualified fav. In practical effect, she is a status quo pick for the present time being. And with a personal history of facing bigotry, that may well push her more leftward. Hopefully.
TuiMel
@kay:
I don’t think it necessary to “like” O’Connor to recognize she had a fulcrum position on the court for a number of years. I can’t say I “liked” (although I always find listening to her speak interesting) her because – among other things – I think she grievously erred in Bush v. Gore. FWIW I think she knew that before the Shrub left office. I was trying to state my belief that a liberal Scalia may not move the court left – unless and until he/she gets support from the confirmation of a true liberal to replace Anthony Kennedy (as Scalia received the gift of Alito for O’Connor).
burnspbesq
@kay:
One person’s freaking crap shoot is another person’s willingness to set ideology aside in order to pursue the over-arching goal of doing justice in the case at bar, with due regards to the facts and the law.
O’Connor was a lot like Harlan and Powell. And I mean that as a compliment.
General Egali Tarian Stuck
As for Holder’s proposal to codify and existing exception, all I can say is the Pink Elephant that is George Bush is still in the left wing reactionary room, and is doing fine and dandy thanky you very much.
Someday, with time, maybe that fucker will die upon the ash heap of history, but for now Mr. Obama, you will need a fancy saddle, to ride that beast around town.
kay
@Brachiator:
I said I thought he trying to codify a broadened exception to Miranda. I don’t think that’s a “suspension of rights”. I try to just take it one at a time.
I have to say, too, I think this history that starts with Bush and ends with Obama isn’t accurate and is inherently political. If we’re going to talk about terrorism, don’t we have to start with Carter? Hell, we don’t even go back to Clinton, who was Mr. Law and Order and a terrorist-fighter all by himself.
I’ve been reading that history on my own, and I while I agree there’s an ARC here, I’d just like to take it out of the Bushbama politico frame, in the interest of accuracy.
kay
@burnspbesq:
I knew this anti-Sandra opinion would be unpopular, burns. I get all kinds of shit for it. I can go on and on, too. I have a rant. I’ll spare you :)
She’s on notice! Kay objects! I”m sure she was terrified.
Cacti
@General Egali Tarian Stuck:
When Brennan and Marshall were his fellow Associate Justices, Stevens was considered a centrist.
Stevens also considers Potter Stewart his Judicial role model. Not exactly an icon of liberal jurisprudence.
kay
@TuiMel:
All good tactician points. I’m cranky though.
I think I would just like someone to make a strong, principled, unequivocal argument. I have the infuriating Senate for horse-trading, and I deal with that okay.
Can I get a clear, unapologetic liberal voice on the Court? I’ve waited a while.
Three-nineteen
@kay:
OK, you forced me to actually click the link and read the article.
So, Miranda as it is right now is fine and has worked, but “now” circumstances are different, so we “may” need to “modify” the exception. So right there, you’re wrong on at least two counts: 1) He doesn’t say he needs it, only that he “may” need it, and 2) he’s talking about modifying the exception, not codifying into law what he’s already doing.
And why are circumstances different “now”? We weren’t dealing with international terrorism “before”? Will the exception only deal with “international” terrorism and not “domestic” terrorism? How do we tell, before we arrest someone, whether we’re dealing with “international” terrorism and not “domestic” terrorism? Why are the two different? Is “international” terrorism worse somehow?
That interview is a big load of bullshit right there.
You don’t even have that. You just have a trial balloon of vague statements talking about “flexibility” and trying to generate sympathy for law enforcement and “situations that agents now confront”, whatever that means.
kay
@Three-nineteen:
I posted a Holder quote from last week where stated to Congress that he relied on the pubic safety exception.
That’s existing law. It exists. That’s what he means. He’s making a good faith argument to codify or extend existing law.
That’s all you got.
TuiMel
@kay:
I want it all. A clear, unapologetic liberal who isn’t a judicial asshole a la Nino.
kay
@Three-nineteen:
These are two different arguments. He relied on the exception for the last two incidents. That’s specific. He released a timeline on how long he waited to read Miranda. It’s hours. He’s using the exception. That’s why he said it. He stated why it was lawful. The exception. He’s hardly going to come out and say he waited hours (fact: that’s what he did) , and has doubts about whether the exception applies, and now needs a law. That would just be stupid.
Now he’s making a policy argument for Congress, to get his codified exception. That’s broad. He went on tv to make his case to Congress.
Whether that was good politically, I do not know. I would hope that’s not his first thought. How it plays politically. We tried that, with Gonzales.
kay
@TuiMel:
Hah! Good comeback.
Three-nineteen
@kay:
I’m not actually sure what we’re arguing about, but I will say two things.
1) If he used the public safety exception without being sure it applied, he is, in fact, bad at his job, at least by my definition of his job as “upholding the Constitution and laws of the US”. I’m pretty sure that “catch the bad guys and put them in jail no matter what” is NOT in his oath of office.
2) My original comment was that Holder wants to expand the public exception to Miranda rights. I think his comments in the interview show that to be true.
ETA “NOT” in the first statement (and I was doing so well, too!)
burnspbesq
@kay:
I don’t doubt it.
Buy me a beer and I’ll listen to anything.
burnspbesq
@TuiMel:
Got somebody in mind?
eemom
@John Cole:
There have not been “dozens of stories.” There have been a handful of speculations, all of them based on nothing. There are also people who actually know the woman who say just the opposite.
eemom
@cat48:
Yes, I am. She graduated three years before I did, and everybody I know who knew her says she is fucking brilliant.
eemom
@NobodySpecial:
Oh, but I’d much rather whisper sweet nothings into your ear, Nobody.
HRA
About Miranda – it came about when at some point either the perp was unaware of the right to counsel and in some cases the interrogator was over zealous in the interrogation. It’s a protection both ways.
I did happen to watch parts of the Holder interview on NBC and CBS this morning. IMO he was giving middle of the road answers to stem the tide of public clamoring over the issue. In fact, it came to be apparent when Guiliani followed him on CBS with sparse disagreement to Holder. Bascially Guiliani has used the Christmas Day airplane bomber, Ft. Hood and Times Square to take the place of a vowel, a noun and 9/11.
burnspbesq
@Three-nineteen:
You say “upholding the Constitution and laws of the US” as though their meaning was self-evident and no gray areas ever exist. Surely you know better than that.
It is simply the case that the rule-writers are always at least one step behind reality. Mediocre lawyering is regurgitating what the law is known to be. Good lawyering is accurately predicting how a court or administrative agency will apply the law to a fact pattern that the drafters didn’t consider when they wrote it.
TuiMel
@burnspbesq:
Comment was somewhat tongue-in-cheek. But, the answer is that I do not (Im not familiar enough with the field of possibilities). BUT, I cannot believe there is no one out there who fills that bill and is not “too old” or unqualified for consideration.
eemom
2 things Kay:
1. I don’t think the “Kagan gets it because it’s her turn” argument is valid here. That would apply to the appeals court judges like Woods. And as I’ve said b4, I think Woods would be a better choice.
I also think, though of course I don’t know, that if Obama picks Kagan it’s because he personally respects and trusts her, she’s less controversial than Woods, and he prefers to avoid energizing the fundie anti-abortion loony bin on the eve of the election. Look how it almost sank HCR.
2. I agree with you about Sandra Day. It is my opinion that she should burn in hell for Bush v. Gore right next to her majority “brethren.”
Three-nineteen
@burnspbesq:
Here’s the way I am applying it in this instance (I know I am interpreting for and assigning intent to people I don’t know, but it can’t be helped.)
FBI catches a guy they personally are 100% sure is the Times Square bomber. They think he may know of other imminent threats to the US. Holder can do one of two things: 1) Read him his rights and question him about the potential imminent threats, or 2) not read him his rights under the public safety exception and question him about the potential imminent threats. One is definitely lawful, and the other is in this weird gray area which he has known about for a long time and has not tried to change in the two or so years he has been AG.
What does he do? He takes the “I’m not sure” route, because it could possibly save lives and (again, assigning intent I can’t know about) possibly because it’s good for the Obama administration politically.
Which route would without question be “upholding the Constitution and laws of the US”? I know what I think.
burnspbesq
@Three-nineteen:
OK. I don’t agree, but what you are saying is not unreasonable.
Brachiator
@kay:
I noted in another post in this thread that Holder’s initial arguments don’t hold water, that the threat of international terrorism is somehow new and different than earlier threats and so invites a revisit of Miranda.
Bush/Cheney took the debasement of rights to a level that has not been seen since the McCarthy hysteria.
And you’re damn right that some of this is political. Where have you been for the past few years? We have state governors rattling the rusty chains of states’ rights in part because of a fear of a black sitting president of the United States and senators like Lieberman openly suggesting that suspects should be stripped of their rights.
We’ve always had “terrorists,” from anarchists to Communists to union organizers, to Civil Rights workers. And it is precisely because we have had “terrorists” in the past that I think that Holder would have to go a long, long way before he can reasonably argue for any changes to Miranda.
And hell, if I were being super cynical, I would argue that Holder is using the recent news events of the NYC terrorist in order to get a tool to fight against domestic right wing terrorists, such as people who might get riled up by tea bagger nonsense. Liberals will foolishly applaud this until a future president turns these laws on them.
You have to look at history in terms of who and where we are now. You have to look at the people in the here and now who are exploiting our fears and who consistently argue that we should be willing to lay aside rights because we are afraid and because the homeland needs to be protected. And you have to look at the people in the here and now who still believe that Obama is not the legitimate president of the United States and who might secretly be sympathetic to Muslim terrorists and who still might not be able to prove that he is acceptable if he floats some phony and unnecessary flouting of Miranda.
This would not only be political cowardice. It would be moral cowardice of the worst kind.
General Egali Tarian Stuck
@Three-nineteen: I too, think your approach is reasonable. But I don’t expect many situations like this, where a bomb is attempted and the bomber is caught. And history has taught us, that when this occurs, however infrequent, there is a justifiable reason to believe other bombs may also be in play. It is how AQ operates, fairly often. I don’t think it unreasonable to assume a “public safety’ situation exists and peoples lives could be in imminent danger and the old adage about the constitution not being a suicide pact could be true in such a case. I would not support hauling the guy off to some shit hole dungeon and using coercive methods for hours or days. But a few minutes, or 50, or whatever congress would compromise with under that number, seems reasonable to me. And the suspect questioned directly with urgency for a short time, before being Mirandized.
Three-nineteen
@burnspbesq:
I know that it’s not as simple as I made it out to be. But no one can say that if he had been read his rights, it would have turned out worse. Until we get access to alternate universes, we can’t know which way saves or costs more lives, either guilty or innocent. But we do know which way preserves the suspect’s rights under our laws.
Brachiator
@General Egali Tarian Stuck:
“Reason to believe” is not the same thing as actual occurrences. I don’t know how often there have been multiple terrorist attacks. And here I am considering not only AQ, but Basque terrorists, and attacks in Sri Lanka, Australia, the Middle East, and other hot spots.
I’m not seeing how a few minutes or 50 is anything other than an arbitrary. Wouldn’t any “imminent danger” really depend on what other information intelligence services have or think that they can get?
Holder may have a case for his desire to tinker with Miranda. But he has yet to make it. And his bringing it up now, when there is no evidence that the NYC bomber was part of other immediate threats, is just plain weird.
kay
@Three-nineteen:
Well, we don’t agree then. I think he’s well within his job title to make a reasonable call regarding whether the public safety exception applies. I can tell you what he’s going to say, too. He’s going to say they asked him if there was another bomb. You really think that isn’t a public safety issue? If there was another bomb, do you really think he doesn’t want to use that statement?
Obviously he thinks he’s okay, because he announced he used it, and announced he’d use it again.
The public safety exception is the law. You don’t think it applies. He does. He thinks what he did is a reasonable interpretation. Not only that, he thinks his interpretation is constitutional, because he just asked Congress to write a statute, and he’ll be defending that statute.
You’re asking me to draw all kinds of conclusions about his larger goals. I just think he’s doing what prosecutors do. That’s why we don’t have just prosecutors. We have a defense, for the specific facts, and a legislature for policy, and courts, for what’s lawful.
“upholding the constitution” isn’t just a saying. It goes to the very essence of his fitness for the job. You’re saying he broke the law, that he violated Miranda, as it is. He says different.
General Egali Tarian Stuck
Somebody had mentioned the 50 minute number earlier and I just used it for a general reference. I don’t know what an exact time frame should be, that would be congresses job. The fact is a public safety exception is legally in effect per case law and Holder, to me, simply stated he would like to codify it. I don’t see a big deal here. It is not in the least Bushian imho, and I think a reasonable way to go about it, in public, through congress etc…..
As for multiple terrorist attacks coordinated, that is common knowledge to be one of AQ and other terrorist group tactics around the world. It does not happen every time, but shouldn’t people tasked with keeping the public safe first assume it could be the case in a situation where a car bomb fails to explode in downtown Manhattan? I think so.
kay
@eemom:
Well, now I’m completely biased because everything I read just goes to my initial take on her. I read yesterday that Kagan didn’t have to worry about liberal opposition because she has all these powerful liberal backers left over from her Clinton tenure, and I took that as further evidence that she’s the conventional pick, and got mad all over again.
It was in the WaPo.
I’ll watch the hearings, and try to stop being such a knee jerk asshole. I get a lot from testimony. I feel as if I’m good at listening and watching live testimony and evaluating it (even that dog and pony show Senate hearing) I think attention to detail in testimony and reading the witness is one of my strengths in my work. I rely on it a lot, and I can be persuaded by it.
Three-nineteen
@kay:
I think it all depends on what people consider “reasonable”. I don’t think it’s reasonable, that over 2 days after a bomb almost went off, the FBI arrests a suspect and decides that there is still such an imminent threat to public safety that they need to not read the suspect his rights, and that this SCOTUS is so hell-bent for a police state they will approve of anything the FBI does (unless it’s to a defenseless corporation). And I’m also saying that the the phrases “reasonable” and “public safety” are going to get stretched beyond all recognition. It’s already started. You say they “asked him if there was another bomb”. No one, not here or in any of the accounts I have seen, has outlined the facts they used to think there was another bomb – not just “there have been multiple bombs before”, but actual facts to make them think there was another bomb in this instance. And why did it take them 50 minutes (or however many hours, I’m not sure of the timeline) to ask if there was another bomb? What did he say after 50 minutes that he didn’t say after 40 minutes, or 30 minutes, or 10 minutes? Will it take 60 minutes next time? Or 70?
Put aside the question of whether what the FBI did was lawful now. If they make this into a law, what are they going to say? I can almost guarantee that it will contain the undefined phrases “reasonable” and “public safety”. I don’t care if Holder is really a good guy and means well when he proposes putting this into law. I care about what’s going to happen when it becomes law. I want to make sure everyone knows how this can and most likely will be abused.
General Egali Tarian Stuck
All laws can be abused. We call them crimes, when they are. Bush broke the bank and broke so many, it would likely occupy the entire federal government for a decade or more, to investigate them all and prosecute the offenders. I am heartened that we have an AG now that states up front what he wants, and lets a debate occur before any new law is proposed, when he didn’t have to because what he did was already considered lawful by case law. And further, isn’t it at least a little cool that internet wankers like you and me get to have a go at it beforehand? Also, too.
burnspbesq
@Three-nineteen:
Looking at your hypothetical in more detail, I am finding it flawed in two respects.
First, you say “Holder” has to make the call about whether to Mirandize or not. Umm, how likely is it that the AG will be on scene or reachable on his BlackBerry at the precise moment that somebody has to make this call? The reality is that the FBI agents or local cops have to make the call, in real time, on the scene. If they wait for somebody from DOJ to weigh in, in all likelihood the question becomes moot.
Second, if the people on the scene make the wrong call about Mirandizing the guy, recover the bomb or the gun or the six ounces of Ebola virus disguised as a can of shaving cream (a scenario from a Tom Clancy book), and the conviction is tossed on appeal, hasn’t the Constitution been served – by the appellate court? When bad guys walk because the cops fucked up, isn’t that a good outcome?
kay
@Three-nineteen:
I have no idea if he’s a good guy. I think all your objections are perfectly reasonable.
I don’t think it’s reasonable to say he’s not “upholding the constitution”. Sure he is. He thinks his actions fall in the exception. There’s going to be a counter. Again, this is not a decree.
Prosecutors often argue that if they’re relying on an exception time and again then there should be a bright line rule.
I think Miranda is under attack from the Right. I agree. What I absolutely hate is how liberals define everything everyone does in terms of what the rabid Right is doing. I mean, Jesus. Holder actually has to worry about this shit. It’s not a theoretical or political issue to him. He actually has to prevent and convict.
Can we give him that? Can we at least give him that he believes he has a genuine use for this exception? We can oppose it, but give him that he knows the rules and wants an exception for some other reason than general police-state-creating.
Brien Jackson
@John Cole:
So fucking what? Republicans are going to blur the lines and attack pretty much anything. That’s simply not a reason for Democrats to adjust their policy proposals.
Anyway, you can’t have it both ways. You either want to let law enforcement do its job as it’s supposed to without politicizing procedure…or you want to tailor how things are handled to fit political messaging. It can be one sometimes and the other the other times.
Nick
@zhak:
Tell that to the Japanese-Americans.
kay
@Nick:
Not to mention that Miranda was decided in 1966.
Can we please not be tea baggers, with their mistaken notions about The Founders? The 5th and 6th Amendments, Bill of Rights, Founders. Miranda, 1966.
Nick
@Bob In Pacifica:
Any liberal or progressive who will sit on their hands and stay home in November because of that, will sit on their hands and stay home in November without this, they’ll find a reason.
The aside, the Obama Adminsitration needs to govern this country without trying to ascertain whether or not every word out of his mouth will upset the “base”
Mike Kay
Mmmmmmmm, reading this while eating roasted garlic popcorn is a blast.
Sad.
Such a beautiful spring day, a sunday, a mother’s day, no less, spent arguing on the internet.
Betty White is right: get a life, not a laptop.
And Another Thing...
@TuiMel: Because Obama/Reid have to have 60 votes to get cloture/avoid a filibuster and get an up or down vote on his nominee. The best case is 59 Dem/Independent votes. Therefore, at least one Republican has to vote with the Dems on cloture. If he nominates some one “perceived” as “out of the mainstream” then he makes it very easy for Rs to demagogue the issue.
After nearly a year of watching this dynamic with regard to health care reform, what about this do you not understand?
I don’t know anybody who likes this but it is reality.
Brachiator
@General Egali Tarian Stuck:
How do you codify something arbitrary? It would almost make more sense to just say “public safety” and let it go at that.
The NYC suspect escaped observation and the plane he was on left the gate and almost took off. There was excellent police work, gaffes and luck. And yet we are supposed to believe that questioners will always have their ducks lined up so that a suspect can have his Miranda rights withheld for some magically specific period of time?
And in practice, how is this supposed to work? A suspect asks for a lawyer and refuses to speak. Do we then go for the waterboarding?
It’s “common knowledge” and yet there don’t seem to be too many actual examples where this has happened, and it was not part of the recent US bombing attempt.
Also, the NYC bomber was supposedly trained by Al Queda Pakistan, which is not the same as the group behind the 9/11 and other attacks. Different group with different tactics.
Then why have Miranda at all? Why not go straight for the torture?
I’m just not seeing the practical justification for any of Holder’s position.
General Egali Tarian Stuck
@Brachiator: It’s legal what he did now, you keep overlooking that fact. There exists and has existed for quite a while a “public safety” exclusion for the Miranda rule. It is case law and therefore vague. Sounds like Holder simply wants to codify it with clear requirements for it’s use, that don’t exist now. I don’t see Holder proposing anything new, just guidelines to be into public law, instead of fuzzy case law. Laws always have ambiguity to them, that is there nature, and we muddle along as best we can to interpret and follow them. Case law has more ambiguity and therefore easier to abuse. Seems to me.
Spain, Great Britain, 9-11. just to name a few, and it wasn’t known that Times Square was a lone actor, that is the point, to ask captured suspects that question.
General Egali Tarian Stuck
This is just silly. AQ in Pakistan/Taliban are all part of the AQ umbrella org. And why does it matter, when you don’t know until you question suspects.
TuiMel
@And Another Thing…:
Wow. Your crystal ball is saying that the Republicans are definitely going to filibuster a qualified SCOTUS nominee? And, where is your mainstream? Whole lot of ceding going on. At least it is clear where you think the balls in American politics reside…
Three-nineteen
Wow, sorry – went out drinking and didn’t realize I was going to get so many responses. I will try to answer them now.
@burnspbesq:
The FBI didn’t find this guy for two days. Do you think they didn’t consult Holder about what to do when they found him? Again, in this particular instance, I think it was up to him what happened at the arrest. Holder is ultimately in charge, Holder is going to be responsible for what the prosecution for this case tries to get admitted into court during the trial, and Holder is the one seemingly asking for an expansion of the public safety exception. But I also think you can replace “Holder” with “the federal government” in all my arguments and they still hold up.
Second, I would be thrilled if the case got thrown out if the police violated the law. But in the 1984 case we all learned about today, the cop violated the law and SCOTUS decided that this cop magically found an exception to the Miranda law. How are we to be sure, especially with the SCOTUS we have now, that other violations aren’t suddenly OK now?
@kay:
Fine – you win, Holder is a wonderful AG who has the best of intentions and is totally right about needing an exception to a law he says right now has worked in every circumstance he’s come up against. That’s not my point. Again, I tell you I don’t care if Holder is the second coming of Jesus Christ – this exception he seems to think may be necessary at some point in time in the near future because “things are different now” will have real-life ramifications, and we need to seriously think about that before we support any exception to the already tenuous rights the public is afforded in the law. Just because you can make a case that this exception is “lawful” doesn’t mean that it’s right. And since 9-11, anything done in the name of “fighting terrorism” should be doubly suspect.
@General Egali Tarian Stuck:
Yes, I think it’s great that we now get to know in advance about things that will affect our lives. I’m just doing my part and participating in the debate. :)
Bottom line, I’m very wary about anything that people tell me is necessary to “fight terrorism”. That line elicits so much emotion and has been abused so much in the past ten years that it should be completely removed from any debate.
Wile E. Quixote
@TuiMel:
“No amount of ruthless grilling is going to undo a nomination”? Ah, yes, this must be why Harriet Miers has had such a stellar career as an associate justice after her confirmation in 2005. Samuel Alito? Who’s he? Never heard of him.
Citizen Alan
@TuiMel:
If O’Connor had finally realized the extent to which she betrayed her oath of office with Bush v. Gore, she’d have had the decency to stay on the Court until the son of a bitch was out of office. She wanted a Repuke to win in 2000 so she could retire and be replaced by another Repuke. The fallout from Bush v. Gore shamed her into staying on the Court until after the 2004 elections after which Bush could plausibly claim to have been legitimate, but she quit soon after, and now she has the gall to complain about the Court’s rightward tilt since then. She’s actually upset that Bush repaid her generosity by replacing her with a fascist nutjob who will vote to overturn every legal doctrine associated with her name. Boo-fucking-hoo.
Citizen Alan
@Nick:
If by “the base” you mean the progressive wing of the party, I defy you to mention a single occasion in the last 12 months in which Obama has demonstrated any concern for the feelings of “the base.” I personally believe his feelings on the matter were made quite clear when Rahmbo referred to activist groups as “fucking retards” for daring to run ads against Democrats who were actively seeking to wreck HCR.
Mike Kay
@Citizen Alan: why should obama care about “the base”, they supported iraqi invasion warmonger johnny boy Edwards during the primaries. Way to go, base. I can’t wait for the edwards-bonking-dizzy-party-girl-while-his-fat-wife-recovers-from-boob-cancer sex tape to surface.
Three-nineteen
@Three-nineteen:
Just wanted to correct this comment in case anyone actually reads through the entire thread. In the 1984 case, the cop did not violate the suspect’s rights when he questioned him without Mirandizing. The alleged violation happened when the prosecutor introduced the evidence in trial and the judge allowed it. SCOTUS allowed the introduction of said evidence.
kay
@Three-nineteen:
This is your response? To attribute three things to me that I never said, or even implied?
Concede on your original error. You said he wasn’t relying on the exception, because you read the interview but you didn’t read the congressional testimony. But he said he’s relying on the public safety exception, in his congressional testimony, which you didn’t bother to read. When that was pointed out to you, your response was “no he isn’t relying on that”. That’s not good enough.
Had you read the congressional testimony, you would have entered this with different facts, but you didn’t.
You can continue to insist that your original error should be the basis for discussion, but if you’re not even willing to read and acknowledge what the man said then I’m not arguing with you. That’s why you’re resorting to the Jesus Christ stuff. Because you won’t concede the original error. I don’t have any interest in using your personal facts.
brantl
These guys are running away from every possibility of “controversy”, what they don’t understand is that the Republicans have no sense of restraint, nor do they hold any actual factual need to back up their conception of right and wrong with anything concrete, and will make false contraversy for a credulous public that they have been dumbing down for 20 years.
Stan
John, you roll slow but you arrive eventually. You’re always skeptical at first of the DFHs, Firebaggers and their ilk, but sooner or later you come around.
This one’s funny. Fresh off getting a message from God over capitulating on Drill Baby Drill, Obama starts talking about selling out constitutional rights. Has he learned nothing?
Darkrose
Okay, I have a question:
Is the “Miranda Rule” the actual rights themselves, or it it the formal statement by the police informing the arrested person of their rights? I was under the impression that it’s the latter. If so, then I can’t see that in this specific case, it would have made any difference, since any TV-watching American can probably recite the Miranda warning in their sleep. If the contention is that by not telling the Times Square bomber that he had the right to remain silent, he might have spilled his guts on the spot, that…just doesn’t make sense.
Bob In Pacifica
@Nick: Nick, there is a difference between should do and will do.
I vote no matter. But lots of others don’t. I don’t create human nature, I just observe it.