Obama Administration seeks to restrict 5th Amendment protections
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.