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May. 9 2010 - 3:26 pm | 1,159 views | 0 recommendations | 19 comments

Obama Administration seeks to restrict 5th Amendment protections

US Attorney General Eric Holder holds a press ...

Image by AFP/Getty Images via Daylife

Attorney General Eric Holder has announced that the Obama Administration plans to huddle with Congress to create legislation intended to soften Miranda rights – an important and fundamental protection of our 5th Amendment right to remain silent in order to avoid incriminating ourselves in criminal investigations.

Appearing this morning on ABC’s “This Week”, Holder said,

We’re now dealing with international terrorism. 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. And that’s one of the things that I think we’re going to be reaching out to Congress to do, to come up with a proposal that is both constitutional, but that is also relevant to our time and the threat that we now face.
Via ABC News

One is left to wonder whether Holder’s comment refers to the threat of terrorism or to the political threats faced by the Obama Administration from those more interested in feeding on public fear than they are in protecting the fundamental values and laws of the United States?

I cannot help but suspect the latter as the Attorney General knows all too well that Congress cannot legislate away the protections granted by the 5th Amendment to the United States Constitution.

Under current law, authorities may question a suspect prior to reading the individual the Miranda warnings if the safety of the public, the suspect or the officer asking the questions is immediately imperiled. In this situation, the responses of the suspect remain admissible in a court of law.

The case that established the exception, New York v. Quarles 467 U.S. 649 (1984), involved the police having information that a man committing a burglary in a food store was armed with a gun when he went into the store. When the alleged burglar was captured, his gun was nowhere to be found. Concerned that the man could still have access to the missing weapon and, therefore, the capability to hurt someone, the court held that the police had not violated Miranda when they asked the man “Where’s the gun?” and he answered, “The gun is over there.”

Since the creation of the exception, it has been applied in a number of cases – but always where there was an immediacy to the situation.

Some examples –

• Immediately after arresting a kidnap suspect, an FBI agent asked him where the victim was located.
• After arresting a drug dealer an officer asked “Do you have anything on you that could hurt me?”
• Officers arresting a burglar outside a sporting good store he has just burglarized, asked the suspect if he had any accomplices inside the building.

These examples give you a feeling for the purposes of the Miranda exception – to deal with an immediate and dangerous situation as it may be happening for the purpose of heading off a danger to the public, the suspect or the arresting authorities.

What has yet to be tested is a situation where prolonged questioning is involved, allowing authorities to quiz a suspect for information that could prove useful in preventing future public harm where there does not appear to be an immediate, “at the moment”, danger.

While all would agree that getting as much information as possible from a suspected terrorist is of great benefit, our Constitution does not permit us to make selections as to how we apply Constitutional rights so as to fit different criminal acts by different type suspects for crimes they or someone else may commit in the future.

Were the police to capture a murder suspect accused of killing her husband because she couldn’t stand his smoking cigarettes in the backyard and leaving his butts laying about, the police would not be entitled to ask, “We know that your twin sons Johnny and Monty also smoke in the backyard. Were you planning on killing them too?” Were the suspect to respond – before receiving her Miranda warnings – “You betcha. They’re off at college right now but as soon as they get back in three months, they’re dead meat.”, no court would permit her response to the question to be admitted into evidence as it would be a clear violation of her 5th Amendment rights. Clearly, the twin boys were in no immediate danger as the suspect was being held in the police station.

How is this different than asking a suspected terrorist if he has friends in Pakistan who are planning to kill Americans in California? Or asking what terrorist organization he belongs to and what his gang is planning in the way of attacks on American soil in the months to come?

Like it or not, asking these kinds of questions would violate this suspect’s rights just as in the case of the murdering mama. It’s one thing to ask “Are there other bombs set to go off and where are they?” in the hope of disarming the explosives before they can kill. But it is an entirely different thing to pump a suspect for operational information about his terrorist group when there is no immediate and pressing danger.

Here’s where it gets really cynical.

The Obama Administration knows that any effort to expand the exceptions to Miranda – whether by way of Congressional action or by simply testing the current exception by asking all the questions they want of a terror suspect -will, ultimately, be subject to a court test.

If the Administration’s questioning policies were to get it wrong, the result could be the freeing of a terrorists due to the failure of the evidence due to a 5th Amendment violation.

That’s bad politics.

Thus. the Administration’s efforts in seeking Congressional help to abridge the 5th Amendment rights would appear to be little more than an attempt to (a) get on the right side of the current political environment and (b) shift the blame to Congress by getting them to pass legislation that may or may not be Constitutional.

Constitutional protections should never fall prey to the political battles of the day. Indeed, that was the precise point of having a Constitution.

Obama, and his Attorney General, know better. Had it been John Ashcroft appearing on a Sunday morning talk show to discuss the Bush Administration’s plan to narrow our 5th Amendment rights, the progressive-liberal reaction would be at fever pitch. Yet there has been little in the way of protest by either the strict Constitutionalists or the progressives who profess to value the individual rights we share as Americans.

Playing politics with the Constitution is the ultimate in political cynicism, no matter which party engages in the practice – and President Obama, the Constitutional scholar, knows this better than most.


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  1. collapse expand

    All they are doing is trying to protect us from war here at home. I am no lawyer, but Miranda warnings do not need to be administered when there is an imminent threat to public safety anyway.

    At least they admit there is a war. The President is in a tough place here, he understands the need to protect us from war and terror but everything now seems to be “unprecedented times”, stuff we have not had to deal with.

    The scary part of this is when the Patriot Act came out, that was supposed to be just for this type of thing (war and terror) and nothing else, than the next thing you know they are using it with Racketeering statues or whatever to get gangsters and drug dealers, not that I sympathize with them, but I thought Bush promised that was not going to happen and nobody said anything when the FBI and those types started using the Patriot Act, so this could be a foolish thing to trust the gov. to do as they say they will do. If that is your concern, I can understand that.

    • collapse expand

      The problem is that by protecting us through the narrowing of important Constitutional rights, those who do so end up subjecting us to greater danger in the long run.

      In response to another comment. See in context »
    • collapse expand

      The WAR, sir, is in Iraq and Afghanistan/Pakistan. What is happening here is criminal, I agree, but not a war. Fear is what we have to fear. It is a focused domestic weapon, aimed by our own. Compare for a moment (or until it calculates correctly) the hundreds of thousands dead, wounded and maimed in Ira-afgha-pakistan, the millions displaced, the millions made to hate US for generations to come, the bombs falling on their children daily from unseen sources with US stamped on the sides. This does not equate to a bumbling technonerd who can’t even make a firecracker explode, and does it in front of New Yorkers, of all people. Terror is partly a reaction and partly what our so called leaders are using on us to control us. If you don’t see that you don’t see.

      In response to another comment. See in context »
  2. collapse expand

    Rick, you’re smiling because you got this one right. Obama is tacking into the congressional winds (and those are different than the nation’s winds). What makes this more unsettling than the consitutional issues you highlighted, is that the coalition that elected Obama thought he was a leader and now we find that he is only a sailor. Perhaps not so bad when you think of the last pirate that was appinted President by SCOTUS. With Scylla and Charybdis on either side in these dire straits we need an admiral worthy of the task (Ulysses or Nelson) not this mythology of a President we have now.

    You mention the questioning of “terrorists” when you should rightly have said “alleged terrorists” for even the current inmates at Gitmo are only suspected of being terrorists. The former Chief Executives of the country have either confessed (without arrest, and un-Mirandized) or been accused of ordering torture for alleged terrorists. So, does it not follow that Obama seeks to weaken the Miranda rules just before the former CIO of Corporation USA are arrested and Mirandized. Are you smiling again?

  3. collapse expand

    to view a partial list of crimes committed by FBI agents over 1500 pages long see
    forums.signonsandiego. com/showthread.php?t=59139

    to view a partial list of FBI agents arrested for pedophilia see
    campusactivism. org/phpBB3/viewforum.php?f=29

    also see
    ctka. net/pr500-king.html

  4. collapse expand

    Welcome to Bizarro world, where Glenn Beck worries more about your constitutional rights than Obama and Holder do. I give Beck the full credit he is due – he stood up for what is right despite his stand certainly being unpopular with his base. You could say that Obama is doing the same, but on the wrong side of freedom.
    But I’m here to defend Obama not to bury him. In the situation you describe, asking a terrorist if his friends are planting bombs does indeed seem to present a clear threat to public safety. There is a defensible assumption of conspiracy in anyone suspected of terrorist acts, be they Christian or Muslim supremacists.

    Now, a question, since the 5th amendment protects us against self-incrimination, how does it affect information supplied against co-conspirators? That seems to be the crux of the issue.

  5. collapse expand


    Damn, this has me running around thinking- doesn’t look worth it, this lady did a doc. movie, you can start it half through and still get it.

  6. collapse expand

    The current terrorist hysteria has been deliberately generated by the FBI crime family. There is enough prima facie evidence to convict FBI agents of creating the 1st World Trade Center bombing in 1993 google anticev floyd salem fbi
    There is enough prima facie evidence to convict taxpayer funded FBI agents of creating the Oklahoma City bombing google nichols potts trentadue fbi then google trentadue fbi video
    American voters and taxpayers have short term memories and forget how the FBI crime family would scare us with the boogreyman called communism. Interesting how the 3 great terrorist events of the last 20 years came within 10 years of the fall of the Berlin
    Wall. Oh Yea, there is enough prima facie evidence to convict FBI agents of the assassination of Martin Luther King and President Kennedy. A Memphis jury concurred with this thinking in 1999. see http://www.ctka.net/pr500-king.html
    And you want to talk about Miranda Rights.

  7. collapse expand

    Thanks for taking on this issue Rick. I believe that this kind of erosion of civil liberties is inevitable when a country lives in a perennial state of war. It leads, of course, to the question: Who decides who a terror suspect is and how can the law be cynically manipulated (not to mention that it would be unconstitutional in the first place)? Like many, I thought the Obama Administration would at least put an end to the kind of sweeping subversion of civil liberties that we saw in such legislation as the Military Commissions Act. Now it looks as though he’ll add on his own.

  8. collapse expand

    Obama: joined Bush to bail the banks that they may continue their depredations upon the rest of us; expanded Afghanistan–immolating American thugs and Afghan patriots to be re-elected and show himself all manned-up for the Repubs; continues Iraq; continues Gitmo; fails to prosecute the war criminals of the previous administration, making his own even more complicit in their crimes; dithers about foreclosures; expands Bagram, where Afghans and others may be tortured to death by the CIA without any oversight; expands drone attacks whereby American heroes annihilate the wedding parties of innocent (“terrorist”) Afghans by flipping a switch in Langley, VA; makes sure meaningful health care reform will NOT occur; bails the companies who then coolly outsource more jobs AND now wants to gut Miranda. In short, Obama joins the powerful in making sure this crisis reduces plain American to the peonage the powerful want. No more unions, no more living wages, no more protests (terroristic, you know)–just the workers in their place, happy to be wage slaves.

    If you voted for Obama, you really weren’t listening. He is and always has been a right-wing tool.

  9. collapse expand

    I read about Holder’s statement with disbelief. Once again this made me question Obama’s leadership.

    In a matter of minutes Holder managed to take the victory and good press of a 52 hour arrest of the suspect and the arrest of possible Pakistani co-conspirators and like magic twist it into a generation old debate on Miranda and suggest the creation of another legal suspension of constitution rights for American citizens.

    According to every source the arrest was textbook perfect and all the evidence will be able to be used in court. Yet the Obama administration has found a way to take the focus off great police work, great cooperation with the FBI and turn it into some old Bush era tough guy horseshit.

    How did this happen? There were some murmurs and whining from McCain and company that made Obama’s ears redden. Once again he has shown a sensitivity to the right while leaving his base out in the cold shouting into the wind.

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    About Me

    I am an attorney in Southern California, and a frequent writer, speaker and consultant on health care policy and politics. To that end, I am active member of the Association of Health Care Journalists. Based in beautiful Santa Monica, California, I'm very pleased to have the opportunity to be a contributing editor to True/Slant. I've recently finished a book designed to make the health care debate understandable to the average reader, and expect it to be out in the next five months or earlier. In my 'spare time', I continue to write for television and, occasionally, for comic books.

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