Miranda warnings and the public-safety exception.

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Miranda warnings and the public-safety exception.

Postby barracuda » Tue May 11, 2010 12:45 pm

I think this topic is important enough to warrant its own thread. I have a variety of issues with the Miranda ruling and how it is played out in the real world. Do the most recent discussions in the MSM and by the administration signal the end of certain fifth amendment rights?

Maddy wrote:
Eric Holder: Miranda Rights Should Be Modified For Terrorism Suspects

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."

America's system of Miranda rights developed out of a 1966 Supreme Court ruling which found that the Fifth Amendment and Sixth Amendment rights of an alleged rapist and kidnapper, Ernesto Arturo Miranda, had been violated during his arrest and trial (Miranda was later retried and convicted).

The Court ruled that before being interrogated, people in custody must (among other things) "be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court," and that they "must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning."

Holder, who was making his first appearance on a Sunday morning news show, also declared that the Pakistani Taliban was behind the attempted bombing of Times Square by Faisal Shahzad last week.

"We've now developed evidence that shows that the Pakistani Taliban was behind the attack," Holder said. "We know that they helped facilitate it. We know that they probably helped finance it. And that he was working at their direction."

[Video @ link]
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Re: Miranda warnings and the public-safety exception

Postby barracuda » Tue May 11, 2010 12:50 pm

Public safety exception

Miranda warnings do not need to be administered when there is an imminent threat to public safety. For example, if an arrestee hid a handgun in a supermarket just before being arrested, it is not necessary that the police Mirandize the suspect before asking where the gun is.[5] This is consistent with the point that Miranda rights only apply to criminal trials (not to police intervention; anything a person says, self-incriminating or not, can be used by the police to prevent or interrupt further crimes or violations of the law where it is within the authority of the police to intervene, whether or not this violates the interest of the person from whom the police obtained the information necessary for them to intervene.)
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Re: Miranda warnings and the public-safety exception

Postby Simulist » Tue May 11, 2010 1:17 pm

barracuda wrote:I have a variety of issues with the Miranda ruling and how it is played out in the real world. Do the most recent discussions in the MSM and by the administration signal the end of certain fifth amendment rights?

Unquestionably.

"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.

Well, if it works effectively, then why fix it?

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."

The "threats that we now face" which are most "relevant to our times" are the very real threats to our civil liberties posed by ever-encroaching state power, and by a judicial system that is so hyped about the specter of "spectacular threats" that it is thereby generating far more credible threats to ordinary civil liberties.
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Re: Miranda warnings and the public-safety exception

Postby barracuda » Tue May 11, 2010 1:30 pm

That's essentially how I feel as well, Sim, but...

- The public safety exception has granted police a variety of degrees of latitude since Quarles, and the particulars of the questioning of Shahzad (as far as we are aware of them) seem to fall into the realm of reasonableness.

- Shahzad was eventually informed of his rights, within a matter of hours.

- It is unclear how much of the information gathered during his un-mirandized interrogation will be used at trial.

- It is unclear how much this new latitude constitutes the mere ability for judges to admit formerly unusable testimony generally.

- It is unclear whether this amounts to a carte blanche on tortureous interrogation, beyond the scope of miranda warnings.

- I've never been all that impressed by Miranda in the first place. If you want to walk around with no knowledge of your rights as a citizen, you can pretty much expect to be taken advantage of by law enforcement. At least that has been my personal experience.
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Re: Miranda warnings and the public-safety exemption

Postby The Consul » Tue May 11, 2010 1:35 pm

The public safety exception has been there forever. Miranda is not what we think it is, for the most part. For example, what happens before a person is formally arrested vs. routine questioning or being detained as one can be without formal charges. The question is whether the Justice Department is angling for a way to expand the exception, which seems unnecessary, but then, so did the abrogation of the FISA laws. If a cop knocks on my door to question me about the theft of a diamond necklace from a neighbor and I am wearing it, he immediately has right to probable cause without further to do. He can put his foot in the door and ask me to step outside. He can ask me if that is my necklace. He can ask me where I got it. I can say it is mine and God put it in my Cocao Puffs this morning. He can ask me to remove it. I can refuse. At any time I can say I'm not saying shit without my attorney present. He can get whatever information he wants out of me until such time as he ascertains the provenance of the evidence around my neck. If Mrs. Smith comes along with said cop's partner and points at me and says - that's it!, at that time the cop will probably cuff me, miranda me and take the necklace as evidence. When I said previously that the necklace was "mine" it is admissible as evidence though a prosecutor wouldn't need it unless or some strange reason other elements had to be thrown out in the arrest process. Now if I was wearing a string of dynamite around my neck and a vest of c-4 packs around my chest and I answered the door and the officer saw the detonator inside on the coffee table he is not obligated to mirandize me and can procede without a warrant. He can tell me to put my hands on my head and if I hesitate he can shoot me. If he suspects there are different detonators and different explosives in different locations and he decides not to shoot me he can interrogate me even if I ask for my Miranda rights. But he cannot otherwise coerce me and once the bomb squad arrives said officer best relinquishes his questioning. Any further attempts to expand the public safety exemption would meet with stiff resistance from such groups as the ACLU. Many Americans regard the Miranda right as pampering criminals (especially ones with darker skin). So there might be political football to play here, but I doubt it will be done by this administration, more likely to come from teaparyesque republicans looking to score points with base. Holder has to talk tough, even though the suspect is an American citizen, even though he is a Pakistani and just barely a citizen.
What I wish in all of this was that there were real journalists left in television that could ask Holder "Mr. Attorney General, what evidence indicates that this is the work of Pakistani Talliban and not Lashkar-i-Taibi? And how do we know that the Obama administration is not massaging the incident facts as a political tool to bolster support for their military ramp up in Afghanistan? And that bein said, what is the administration's approach in dealing with Pakistan, the ISI and it's relationship to Lashkar-i-Taibi, the Talliban and al-Qaeda?"
Alas. Recently when asked what he was reading President Obama replied "The world is Flat" by Thomas Friedman. He should be reading "Shadow War" by Arif Jamal and "Blank Spots on the Map" by Trever Paglin. Books that could be fruitfully discussed here if they have not been already. But I digress....
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Re: Miranda warnings and the public-safety exception

Postby Simulist » Tue May 11, 2010 1:52 pm

When someone has proven himself untrustworthy on "smaller things" why trust him with even "greater things"?

That the state actually needs any additional "flexibility" has not been proven. That the state is even fully capable of operating within existing guidelines where terror suspects are concerned hasn't been proven, either.

Until these things are proven, granting additional "flexibilities" to the state when that state has already trampled on its existing flexibilities (and quite a few "terror suspects" too, in the process) in its rush to judgment seems... "ill advised" to me, to say the very least.

Is Eric Holder just trying to make some of the abuses that have been going on "all legal-like"?

It wouldn't surprise me.
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Re: Miranda warnings and the public-safety exception.

Postby The Consul » Tue May 11, 2010 3:05 pm

Holder is just putting more sand in the bag. He is like a country prosecutor who doesn't prosecute anyone except people who come forth and cry bullshit on white collar criminals or political hacks.

See the article "The Guantanomo Suicides" by Scott Horton in the March issue of Harper's Magazine.

American's should be outraged. This is murder. A murder conducted by dark forces in the "black world" that have no apparent accountability of any kind you and I would recognize. This is a murder of innocent people who were witnesses to and victims of some of the cruelest forms of torture conducted by the United States which proudly bloviates how it values life more than the islamofascists. Accountable "white world" agents then engaged in covering up the crime from the command office of Camp Delta to the Pentagon and the Justice departments of previous and current administrations. Were able to cover up everything except the memories of what a couple of marines saw.

It won't be long before they can dispose of them, too.

Perhaps at that time there will be an uprising or will it take something even worse....will we simply run out of Whoppers, cheap gas and Big Macs before the slumbering masses awake?
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Re: Miranda warnings and the public-safety exception.

Postby American Dream » Sun May 16, 2010 9:12 pm

http://antifascist-calling.blogspot.com ... error.html

SUNDAY, MAY 16, 2010

Obama's Slippery Slope. Ginning-Up the "Terror" Threat, Shredding the Constitution


When Faisal Shahzad, a naturalized American citizen and 30-year-old son of a retired senior Pakistani Air Force officer was arrested in the failed plot to detonate a car-bomb in Times Square May 1, U.S. counterterrorism officials and their stenographers in the corporate media proclaimed a "connection" between Shahzad and the far-right jihadi outfit, the Tehrik-i-Taliban Pakistan (TTP).

Never mind that such "evidence" relies on the thinnest of reeds: that Shahzad had recently traveled to Pakistan, was allegedly in "contact" with the TTP and had even received "training" from a sectarian, clan- and tribal-based organization wary of outsiders who nevertheless, allegedly "approved" of an ill-conceived plan to kill hundreds of New Yorkers.

Last week on NBC's "Meet the Press," U.S. Attorney General Eric Holder claimed, "We know that they [TTP] helped facilitate it. We know that they helped direct it. And I suspect that we are going to come up with evidence which shows that they helped to finance it. They were intimately involved in this plot."

Holder's "evidence"? Why statements by former CIA torture-enabler and current Obama counterterrorism adviser, John O. Brennan, "confirming" the administration's threadbare assertions.

The New York Times reported that Brennan "appeared to say even more definitively than Mr. Holder did that the Taliban in Pakistan had provided money as well as training and direction."

"He was trained by them," the former CEO of The Analysis Corporation (TAC) and Chairman of the security industry lobby shop, the Intelligence and National Security Alliance (INSA) said. "He received funding from them. He was basically directed here to the United States to carry out this attack."

According to media reports however, Shahzad's motivation for attempting to murder citizens of his adopted country was the cold-blooded killing of his former countrymen by the United States--specifically, the CIA's escalating drone war that has killed nearly a thousand Pakistanis since 2006.

The New York Times reported May 16, that one relative told reporters that "he was always very upset about the fabrication of the W.M.D. stunt to attack Iraq and killing noncombatants such as the sons and grandson of Saddam Hussein." The torture of Guantánamo Bay and other prisoners by the former and current administration was also a source of anger; a message on a Google Groups e-mail list bearing the photos of handcuffed and crouching detainees bore the words, "Shame on you, Bush. Shame on You."

In other words, the catalyst for the aborted attack was not our "freedom" but American policies, specifically the invasion and occupation of Central Asian and Middle Eastern states to secure strategic resources that inconveniently belong to other people.

Despite a new round of drone attacks in Waziristan May 11, that killed 14 alleged militants in a barrage of 18 missiles fired by CIA Predator and Reaper drones, the third since the attempted bombing, Pakistani officials dismissed the notion that the TTP were capable of reaching the "next level."

McClatchy Washington Bureau investigative journalist Saeed Shah reported May 11, the same day of the drone barrage, that "the inept construction of the failed bomb also raised doubts over whether the Pakistani Taliban could have trained Shahzad. They have expertise in explosives and were connected to the devastating strike on a CIA base in Afghanistan at the end of last year."

In an earlier report, McClatchy disclosed that "six U.S. officials had said there was no credible evidence that Shahzad received serious terrorist training from the Pakistani Taliban or another radical Islamic group."

In all likelihood, the insular TTP would not have viewed Shahzad as a potential recruit but rather as an American or Pakistani spy and he probably would have shared the fate of former ISI officer and Taliban supporter, Khalid Khawaja, who was gunned down in May by a militant faction despite close ties to Osama bin Laden and Mullah Omar.

Even within the murky world of America's public-private secret state, not everyone is buying the administration's "TTP trained Shahzad" tale.

McClatchy reported that the private intelligence outfit, Stratfor, said that "the lack of tradecraft in Shahzad's device is compelling evidence that whatever 'contacts' or 'training' he might have received in northern Pakistan was largely confined to physical training and weapons handling, not the far more sophisticated skill set of fashioning improvised explosive devices."

But with Obama's "AfPak" adventure going off the rails, perhaps the most compelling question not being asked by the media is this: was the failed May 1 attack, like the Christmas Day plot to blow up Flight 253 over Detroit, a "product" to be exploited by the administration and their allies in Congress for wholly domestic purposes, one having very little to do with the specter of international terrorism?

Bring in the Clowns

Even before the smoke cleared in Times Square, congressional Democrats and Republicans were calling for a new round of repressive measures to "keep us safe."

Senators Joseph Lieberman (ID-CT) and former nude pin-up boy, Scott Brown (R-MA), introduced the Terrorist Expatriation Act that would allow the State Department to revoke the citizenship of people suspected of providing support to terrorist groups.

Lieberman told a May 6 press conference, "If the president can authorize the killing of a United State's citizens because he is fighting for a foreign terrorist organization, in this case Al Qaeda on the Arabian Peninsula, that is involved in attacking America and killing Americans, we can also have a law that allows the U.S. government to revoke a locked-in citizenship."

The grammar-challenged senator from Massachusetts told the press, "This isn't a knee-jerk reaction. It reflects the changing nature of war in recent events. War has moved into a new dimension. Individuals who pick up arms, this is what I believe, have effectively denounced their citizenship. This legislation simply memorializes that effort."

In keeping with the repressive tenor of the times, House Speaker Nancy "impeachment is off the table" Pelosi (D-CA), said she supported the "spirit" of the bill.

But while we may dismiss the political theatrics of these clowns, more attacks on our rights and liberties are on the way.

During last week's appearance on "Meet the Press," Holder claimed that Justice Department interrogators "needed greater flexibility" to question terrorism suspects and that the administration now seeks to "carve out a broad new exemption to the Miranda rights established in a landmark 1966 Supreme Court ruling."

According to that precedent, prosecutors are barred from using statements made by suspects before they have been warned that they have a right to remain silent and to consult with an attorney.

That ruling was based on decades of evidence that police, including federal gumshoes, had coerced false confessions from suspects and then used their tainted statements in order to secure convictions and prison sentences--whether or not the individual was actually guilty of a crime.

Investigative journalist Charlie Savage reported May 10 in The New York Times that the "change" regime, providing a new, Orwellian twist to the meaning of the word, will ask Congress to loosen Miranda requirements against a "backdrop of criticism by Republicans who have argued that terrorism suspects--including United States citizens like Faisal Shahzad, the suspect in the Times Square case--should be imprisoned and interrogated as military detainees, rather than handled as ordinary criminal defendants."

In other words, far from being a proposal that will "keep us safe," the administration's tinkering with constitutional protections is a cynical political calculation by spineless Democrats, caricatured by their Republican colleagues as "soft on terrorism," to deflect criticism in an election year.

While the American Civil Liberties Union (ACLU) questioned Holder's move saying that "gradually dismantling the Constitution will make us less free, but it will not make us more safe," Salon columnist and constitutional law scholar Glenn Greenwald, was far less circumspect in his criticism of the administration. Greenwald wrote May 13:

What's most amazing about all of this is that even 9 years after the 9/11 attacks and even after the radical reduction of basic rights during the Bush/Cheney years, the reaction is still exactly the same to every Terrorist attack, whether a success or failure, large- or small-scale. Apparently, 8 years of the Bush assault on basic liberties was insufficient; there are still many remaining rights in need of severe abridgment. Even now, every new attempted attack causes the Government to devise a new proposal for increasing its own powers still further and reducing rights even more, while the media cheer it on. It never goes in the other direction. Apparently, as "extremist" as the Bush administration was, there are still new rights to erode each time the word Terrorism is uttered. Each new incident, no matter how minor, prompts new, exotic proposals which the "Constitution-shredding" Bush/Cheney team neglected to pursue: an assassination program aimed at U.S. citizens, formal codification of Miranda dilutions, citizenship-stripping laws, a statute to deny all legal rights to Americans arrested on U.S. soil. ...

It really is the case that every new Terrorist incident reflexively produces a single-minded focus on one question: which rights should we take away now/which new powers should we give the Government?
(Glenn Greenwald, "New targets of rights erosions: U.S. citizens," Salon, May 13, 2010)

As if this weren't bad enough, the administration will soon propose new legislation to Congress "to allow the government to detain terrorism suspects longer after their arrests before presenting them to a judge for an initial hearing," The New York Times reported May 15.

"If approved," the Times disclosed, "the idea to delay hearings would be attached to broader legislation to allow interrogators to withhold Miranda warnings from terrorism suspects for lengthy periods, as Attorney General Eric H. Holder Jr. proposed last week."

It was unclear how long a "delay" the regime is seeking but in order to circumvent Supreme Court rulings barring the indefinite detention of suspects, "several legal specialists" according to the Times said that the "court might be more willing to approve modifications if lawmakers and the executive branch agreed that the changes were necessary in the fight against terrorism."

One such "specialist," Benjamin Wittes of the Brookings Institution said that while the Miranda proposals were generating publicity, a "presentment" hearing "is even more likely to disrupt an interrogation because it involves transporting a suspect to a courtroom for a formal proceeding."

In a May 14 Washington Post op-ed, Wittes argued that "the presidency badly needs more political and legal latitude when authorities capture a suspect in an ongoing plot." All the more relevant when that "plot" is one hatched in the shadows to destroy the constitutional rights of the American people.

As a "safeguard" Wittes told the Times, "Congress could require a high-level Justice Department official to certify that delaying the suspect's initial appearance in court was necessary for national-security reasons."

But as with administration assertions of the "state secrets privilege" to derail lawsuits challenging the government's imperial right to illegally spy on their citizens, such Justice Department avowals wouldn't be worth the paper their written on.

In testimony Thursday before the House Judiciary Committee, Holder claimed that administration proposals would effect only a minute number of "terrorism" cases.

Holder told the Committee: "We now find ourselves in 2010 dealing with very complicated terrorism matters. Those are certainly the things that have occupied much of my time. And we think that with regard to that small sliver--only terrorism-related matters, not in any other way, just terrorism cases--that modernizing, clarifying, making more flexible the use of the public safety exception would be something beneficial."

Really?

Would the "public safety exception" only apply to "terrorism" cases that involved the Afghan-Arab database of disposable Western intelligence assets known as al-Qaeda?

Or, as is likely, would a more expansive reading of the statute be viewed as a splendid means by this, or future administrations, to subject domestic dissidents, rebranded as "terrorists," to citizenship-stripping administrative detention, which after all is just another day at the office for that "beacon of democracy," America's stationary aircraft carrier in the Middle East, Israel?

What with preemptive policing that already targets antiwar, antiglobalization and environmental activists for "special handling" by federal, state and local "counterterrorism" agencies, fusion centers and various Pentagon spy shops, it's a sure bet that "what happens in Vegas" won't stay there.

As Patrick Martin pointed out May 10 on the World Socialist Web Site, "In practical terms, the Obama administration no longer distinguishes between citizens and non-citizens in its counterterrorism policies. Both alike can be targeted for surveillance, arrest, indefinite detention, even assassination."

Martin writes that the introduction of an expanded "public safety exemption" when coupled with the administration's indefinite detention proposal "would go far beyond the Bush administration, translating what were measures to be taken on executive authority, supposedly in emergency conditions, into the standard operating procedures of the US government and police agencies at every level."

What was it again the terrorists hated us for?
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Re: Miranda warnings and the public-safety exception

Postby crikkett » Mon May 17, 2010 9:41 am

Simulist wrote:Is Eric Holder just trying to make some of the abuses that have been going on "all legal-like"?

It wouldn't surprise me.


It wouldn't surprise me if Eric Holder, in seeking 'clarification' of the public safety exception, was actually intent upon increasing the level of discipline among law enforcement agents, to prevent abuse in the future.

But that idea might not gain so much traction around here because it doesn't allow people to post such glorious rants in opposition.
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Re: Miranda warnings and the public-safety exception

Postby Canadian_watcher » Mon May 17, 2010 9:54 am

barracuda wrote:
If you want to walk around with no knowledge of your rights as a citizen, you can pretty much expect to be taken advantage of by law enforcement. At least that has been my personal experience.


In my experience they ignore you and laugh at you when you DO know your rights.
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