by Jonathan Turley
March 24, 2011
President Obama has continued his attack on basic constitutional and legal principles with an astonishing new order that allows investigators to not only hold domestic terror suspects for longer periods but to deny them Miranda rights under a strained interpretation of the public safety exception. Obama had attempted to get this change from Congress but was rebuffed. He has now again adopted a tactic of his predecessor and acted unilaterally to trump recognized constitutional rights.
Past administrations have accepted that all domestic suspects are afforded the same protections under Supreme Court precedent governing Miranda warnings. The Supreme Court ultimately ruled in Dickerson v. United States, 530 U.S. 428 (2000), that the Miranda rights were constitutionally based.
The Administration is claiming a categorical right to invoke the public safety exception for any terror suspect — a facially absurd assertions since terror cases may or may not involve an imminent threat. Jose Padilla was claimed as being involved in an imminent threat of an nuclear attack. That claims was later withdrawn by the Bush Administration.
The public safety exception was recognized in New York v. Quarles, when a police officer got a rape suspect to tell him where a gun could be found in a grocery store. The Supreme Court allowed the incriminating statement to be admitted and ruled that it was “a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.” Notably, the Obama Administration is trying to achieve what it could not achieve in prior cases of coerced statements — to allow these statements to be introduced despite the contravention of a recognized constitutional right.
The public safety exception has always been highly case specific and this would be the ultimate example of the exception swallowing the rule. Of course, as constitutionally based, Obama cannot unilaterally change the meaning of this right by simple decree.
What is truly alarming is the failure of the Administration to tell anyone that (after being rebuffed by Congress) Obama simply went forward and ordered the change. The policy allows investigators to deny the protection of Miranda in “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Obviously, that would allow investigators to claim the need for timely intelligence in any case. What investigator (or approving supervisor) is going to say that this case is not really a pressing matter of public safety? Under Obama’s approach, an investigator can interrogate a suspect first and then, after he has incriminated himself, tell him that he could have remain silent.
The disclosure of the policy further cements Obama’s legacy as a civil liberties nightmare. He is no longer viewed by civil libertarians as a disappointment, he is now viewed as a menace to fundamental rights.
Once again, the Democratic leadership is virtually silent in the face of this circumvention of not only the Constitution but Congress itself.
By Larry Simons
In the 2007 Charlie Savage interview [with Obama] from the Boston Globe I mentioned in the story earlier today, Savage goes on to ask Obama this question:
Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea?
First and foremost, I agree with the Supreme Court's several decisions rejecting the extreme arguments of the Bush Administration, most importantly in the Hamdi and Hamdan cases. I also reject the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments. In my view, torture is unconstitutional, and certain enhanced interrogation techniques like “waterboarding” clearly constitute torture. And as noted, I reject the use of signing statements to make extreme and implausible claims of presidential authority.
Some further points:
The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional. [Obviously still happening, as Turley’s article reveals]
Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional. [Still happening]
The violation of international treaties that have been ratified by the Senate, specifically the Geneva Conventions, was illegal (as the Supreme Court held) and a bad idea. [Still happening]
The creation of military commissions, without congressional authorization, was unlawful (as the Supreme Court held) and a bad idea. [Still in place, under an amended military commissions]