“Change We Can Believe In”?

by Pejman Yousefzadeh on March 24, 2011

I think not:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

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

The Supreme Court’s 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

Matthew Miller, a Justice Department spokesman, said the memo ensures that “law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents.” He said “the threat posed by terrorist organizations and the nature of their attacks—which can include multiple accomplices and interconnected plots—creates fundamentally different public safety concerns than traditional criminal cases.”

Stephen Bainbridge twists the knife:

Weren’t we told ad nauseum back in 2008 that Obama was the anti-Bush? No more military adventures in the Middle East. No more undeclared wars. No more wars without consulting Congress. Respect for civil liberties.

How’s that working out for you?

Another portion from the story is worth mentioning as well:

The Miranda change leaves other key procedures in place, notably federal rules for speedy presentation of suspects before a magistrate, normally within 24 hours. Legal experts say those restrictions are bigger obstacles than Miranda to intelligence gathering. The FBI memo doesn’t make clear whether investigators seeking exemptions would have to provide a Miranda warning at the time of such a hearing.

Also unchanged is the fact that any statements suspects give during such pre-Miranda questioning wouldn’t be admissible in court, the memo says.

Commenting on this, Benjamin Wittes opines as follows:

. . . First, as one of those folks who thinks that presentment is a much bigger deal than Miranda, I remain puzzled by the focus on relaxing Miranda. While seeing how much flexibility there is in the public safety exception to Miranda makes good sense, Miranda is a tail wagging the dog in the problem of managing crisis detentions. The dog is how much time investigators get with a suspect before they have to interrupt their conversations and put him through a formal proceeding in front of a magistrate.

A fair statement, and one worth emphasizing, but that doesn’t change the fact that the decision to hold terror suspects longer without reading them their rights goes against the spirit and the letter of the campaign platform with which then-Senator Obama sought the Presidency. Ever since having won, Barack Obama appears to have devoted much of his time to affirming Bush Administration decisions on anti-terrorism policy, and executive power. That has got to disappoint fans and observers, who must now realize that there is a world of difference between Barack Obama the Presidential candidate, and Barack Obama the President.

Another observation from Wittes deserves mention as well:

. . . it is interesting that this ended up being policy guidance, rather than legislation. When this issue first arose, Attorney General Eric Holder said publicly that he was looking for legislative help on the public safety exception. The proposal, however, never materialized. This memo–which is not public–is what seems to have happened instead. That seems to me like a bad trade. A rich debate was developing over whether codifying the public safety exception was possible constitutionally and how much one could do it. Now, instead, we have a policy change that isn’t even public.

A more deliberative, and careful White House decision-making process is yet another thing we were promised by then-Senator Obama. So much for that promise as well.

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