Attorney-General Eric Holder has apparently decided to support Republicans’ attempts to weaken or do away with the Miranda rule in the context (for now, at least) of interrogating suspected terrorists who (for now, at least) have connections, or might have connections, to international terrorist groups:
The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.
Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.
He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions.
This is in spite of the fact that Faisal Shahzad, arrested in the failed Times Square bombing case, was successfully questioned for hours using the already existing public safety exception to Miranda, and that, when given the opportunity to be mirandized, he waived his rights and continued talking.
Even weirder is the fact that AG Holder acknowledged this reality at the same time that he called for “greater flexibility” in applying Miranda:
Even in his appearance on ABC, Holder makes a case that Miranda has not impeded any investigation to date:
The system has proven to be effective. …. people have been given Miranda warnings, people have continued to talk, as was the case [with Faisal Shahzad], as was the case with Abdulmutallab in Detroit.
And Holder has made even more passionate defenses of Miranda in the past, notably in Congressional testimony (see some quotes from such testimony here). Nevertheless, Holder effectively uses his Sunday show debut to say, “If it ain’t broke, but fearmongers like Joe Lieberman and Lindsey Graham want to attack it nevertheless, then hell! Let’s break it!”
As Justin Elliott of TPMMuckraker reported a couple of days ago, the Obama administration already has been using the public safety exception in ways the Bush administration never did:
Federal agents questioned both Faisal Shahzad, the man accused of planting a makeshift bomb in Times Square, and Umar Abdulmutallab, the failed Christmas Day bomber, under the so-called public safety exception to the Miranda rule for substantial periods before informing the men of their right to remain silent, and to an attorney.
[…]
“It looks like to me they’re trying to find this middle ground between saying the Constitution applies with full force and the Constitution doesn’t apply,” says Sam Kamin, a professor of criminal law and procedure at Sturm College of Law in Denver who has written about terrorism interrogations. “It seems to be a deliberate strategy.”Asked about the use of the public safety exception, a federal law enforcement official tells TPMmuckraker: “There has been no change in the long-standing law on Miranda or in the FBI’s current policy governing use of Miranda, which was issued during the prior Administration.”
None of several experts on Miranda interviewed by TPMmuckraker knew of publicly reported use of the public safety exception in a terrorism case during the Bush years, a fact supported by a Nexis search. And they say the length of the pre-Miranda interrogations in the two recent cases — 50 minutes and a few hours respectively — also appears to break new ground.
It’s also worth pointing out that just because a conservative blogger or a right-wing media pundit or reporter gets all outraged over the authorities ‘not having enough time’ to question a suspect or ‘not being able to get enough information’ in ‘only’ 50 minutes or ‘only’ a few hours or ‘only’ a day, doesn’t mean they know what they’re talking about (emphasis is mine):
As Holder went on to note, the Supreme Court, which recognized the public safety exception in the 1984 Quarles case, has never laid out how long questioning can last under the exception.
But, says Todd Foster, a criminal Tampa defense attorney and former FBI agent and federal prosecutor, “you’re typically looking at something that’s done at the instance of arrest for a very short period of time — just a couple of questions: ‘Where’s the gun?’ ‘Do you have anything sharp in your pocket?’ Not like, ‘Let’s go through your pawn shop receipts for the last weeks.'”
In the Christmas case, agents questioned Abdulmutallab in his hospital room under the public safety exception for 50 minutes, beginning several hours after he was apprehended around noon in Detroit. He was ultimately read his rights about five hours later, after going through surgery. …
“Useful, valuable intelligence was gained in that one hour,” Holder said Thursday. “A lot of people have said, you only spoke to him for about an hour — they say, 50 minutes — without recognizing that in that period of time qualified, experienced FBI agents can elicit really substantial amounts of information.”
In the Times Square case, the period of interrogation under the public safety exception “far exceeded” 50 minutes, Holder said. (Citing unnamed officials, the Los Angeles Times puts it at three or four hours.)
The federal law enforcement official tells TPMmuckraker that after the initial Shahzad interrogation, which lasted from late Monday night into early Tuesday morning, “he was eventually transported to another location, where he was provided with his Miranda warning, which he waived.”
Several law professors tell TPMmuckraker that such lengthy interrogations may stretch the bounds of the exception.
“They’re extending it, they’re pushing the outer limits,” says Foster.
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