While the blawgosphere will be atwitter today over Elena Kagan’s nomination to the Supreme Court, about which Norm Pattis has pretty much captured my feelings, Attorney General Eric Holder’s revelation that the Obama administration will support changes to Miranda to deal with the Communist terrorist threat is likely to get lost in the sauce. Aren’t you glad you voted Democratic?
The Obama administration is considering changes to the laws requiring police to inform suspects of their rights, potentially pursuing an expansion of the “public safety exception” that allows officers to delay issuing Miranda warnings, officials said Sunday.
Attorney General Eric Holder, in his first appearances on Sunday morning news shows as a cabinet secretary, said the Justice Department is examining “whether or not we have the necessary flexibility” to deal with terrorist suspects such as the Pakistani-born U.S. citizen who tried to detonate a car bomb in Times Square last weekend.
“We’re now dealing with international terrorism,” Holder said on ABC’s “This Week.” “And if we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception.”
I feel safer already, just knowing that Holder seeks to further entrench the facile distinction between terrorists and criminals. Whouldathunk criminals would be the preferred crowd? Well, not quite preferred, but to the extent they can’t be labeled terrorist.
Over at Volokh Conspiracy, Orin posts about some underlying legal questions with the concept of Congress legislating some new variant on Miranda, given that it’s derived from a Supreme Court decision. Of course, the remedy for a Miranda violation is the inability to use statements in direct evidence at trial. That presupposes that terrorists get trials, which isn’t exactly a given yet.
There’s no word on what exactly Holder is talking about when he says that the adminstration will expand the public safety exception. Will there be changes to the warning itself, such as “you have the right to remain silent, and we have a waterboard right here with your name on it,” or will it be that Miranda warnings need only be given when the TV cameras have moved on to the next story of public fascination?
Either way, the concept that there is a new enemy to America that transcends the system that now exists and requires new rules because, well, this is War, will permeate our approach to all threats, real and perceived. We’re always at war with something these days, and by using the jargon of war to explain our situation to a public ridden with fear, thus muddying up the thought process and creating the appearance of distinctions that justify, if not compel, new approaches for these new threats, our war against the terrorists today will be our war against somebody else tomorrow. Just as the war against crime, against drugs, brought us to this point. Full of fervor. Full of fear. We must fight the enemy.
Some 110% American will inform me that I just don’t get it. There are evil people out there bent on destroying our way of life, and here some pantywaist criminal defense lawyer would treat these murderers like they are entitled to a walk in the park in the spring-time, with cable TV. “You just don’t get it.” No, I don’t.
Put aside that my idea is to treat murderers like . . . murderers. Whatever was I thinking? Despite the intrinsic issues with the criminal justice system as it now applies to those accused of crimes, it’s not enough to deal with the threat of terrorists. It might give them some chance. We can’t have that, because these aren’t just mere criminals. These are especially evil criminals. Not good, wholesome criminals like those other ones.
We’ve tried suspending the rules, along with our ability to reason, in the past, and it has always come back to shame us for our disgraceful lack of fortitude in the face of a perceived threat. Anybody remember Japanese internment camps during WWII? Yet we ignore George Santayana and manipulate those with short memories by offering solutions to today’s grave threat.
Who knows what fine measures Attorney General Holder and the Obama administration have in mind. No doubt this will change everything and make us much, much safer. You can never be safe enough, you know.
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Scott: As you oughta know, there is an alternative to voting Democrat or Republicsn. Vote Libertarian.
True, it may not yield much in terms of representation, but it offers the possibility of keeping one’s conscience mostly unscathed.
Excellent
Don’t go there.
Gee, with a name like yours, I bet you care deeply about Miranda issues. So deeply that you won’t mind if I delete your backlink but include your very valiuable comment. That’s because you move me.
For others, my apologies but I’m in a weird mood this morning and just decided that this one was too absurd to pass up. This, ladies and gentlemen, is the glory of the internet and the thrill of being a blawger.
I’m trying to think how much different the discussion would be if we were talking about the Carmen Miranda warning: “You have the right, when singing and dancing, to have fruit on your head.” Demagogues on one side of the argument, such as it is, would argue that it’s terribly important, when questioning terrorists, that they not have access to a banana — after all, look at what happened in that Monty Python sketch — and those on the other side would argue that Bush administration always put kiwi fruit on suspects’ heads, anyway, and maybe it’s time that Congress legislate an exception, as well.
A lot of the controversy around Miranda, as it is, seems from this remove like a debate over the shape of the rubric when the rationale has long since been lost sight of. As you and the folks at Volokh (among others) keep reminding people, the only benefit to an accused (terrorist or jaywalker) of a failure to Mirandize the guy is that there are some limitations on the use of confessions obtained in custodial interrogations. And the only detriment to the authorities’ interest in prosecuting the guy is the converse of that — and then only if he doesn’t repeat himself after being Mirandized.
Obviously, I’m missing something important.
Never underestimate the government’s desire to shoot bananas in a barrel.
Unlike Lloyd Blankfein, I am able to resist the temptation to ignore the advise of a seasoned professional such as yourself (VBG).
I don’t understand liberal pantywaists like yourself. What’s wrong with preserving the Land of the Free and the Home of the Brave with panic-driven repression?
Who are you calling a liberal?
You don’t need me to tell you that eternal vigilance is the price of liberty, but perhaps I can illustrate the cost when that price is not paid. I’m English, and what’s happening in England is frightening. Since the year 2001 we have lost the right to trial by jury in criminal trials (we recently completed our first juryless criminal trial). The police can detain suspects up to 28 days without charge (a bill to increase the limit to 90 days was narrowly defeated). We have lost our double jeopardy defence. Our rights to freedom of assembly have been curtailed, as have our rights to free speech. Just today a man was convicted (under section 127 of the Communications Act 2003) of tweeting “Crap! Robin Hood Airport is closed. You’ve got a week… otherwise I’m blowing the airport sky high!” (Note, everyone realized this was a stupid joke – no police were called out, no flights were cancelled, nothing happened, but still the man was convicted.)
The transformation of England into East Germany is almost complete. Don’t let them do it to America.
It’s always baby steps for a perfectly fine reason, until one day you realize that they’ve taken it all away. We are quite that bad. Yet. But we’re already lost far more than people realize.
You must be a liberal if you object to obviously necessary measures like this. Next you’ll be telling me that it’s not OK to suspend the citizenship of those accused of terrorism, or shoot the dogs of people who might have a little marijuana.
I think you mean “not quite that bad. Yet.”
But, well, yeah. The UK is a good demonstration of what happens downslope, in lots of areas.