Rethinking Miranda rights for terror suspects?

There was a  heated debate over a week ago over whether the Times Square suspect should have been Mirandized. And lots of folks said absolutely, and not just the usual types on the left who think terror is about crime and not war. Conservative voices spoke up quite thoughtfully in defense of the idea that

Today, as three more are arrested, seems like a good time to revisit the issue.

Especially since the Obama administration signaled a couple of days ago that it was rethinking the wisdom of reading such suspects their rights.

Did you see that? Here’s an excerpt from a report about that:

WASHINGTON — 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….

I didn’t realize that had happened until I saw an op-ed piece today in the WSJ praising it:

… In other words, the Miranda rights to remain silent and have an attorney present during questioning would be suspended for terror suspects believed to possess information that could prevent an attack.

The administration is making a number of admissions here: Mirandizing Umar Farouk Abdulmutallab, aka the underwear bomber, after only 50 minutes of questioning was a mistake; terrorists are enemies of America, not ordinary criminals; and the law-enforcement approach to combatting terrorism, which is designed to obtain evidence admissible at trial after a crime has already been committed, is not the most effective way to obtain intelligence to prevent future attacks.

This is an important step forward and a sign that, after the Manhattan subway plot, Fort Hood, Detroit, and now Times Square, the administration has become more adaptable to the realities of the war on terror. Yet the jury is out on whether the administration has a real plan or is merely improvising. Times Square bomber Faisal Shahzad remains in the criminal justice system and has not been designated as an enemy combatant, though he is still eligible for such designation….

Of course, the idea that Mr. Holder is raising is based in the oft-cited nostrum that the Constitution is not a suicide pact.

Anyway, I was wondering if anyone had had any further thoughts on this point.

44 thoughts on “Rethinking Miranda rights for terror suspects?

  1. Pat

    It is worrisome to me that a bonafide citizen wouldn’t get due process. If someone lied to get their citizenship, then perhaps their citizenship might be revoked. But if the main reason to not inform someone of their rights is to uncover other terrorists, and then hold back something to prosecute outside that area. It wouldn’t stop prosecution of terrorists that the interrogation uncovered, would it?
    I don’t think non-citizens should necessarily have the same rights as citizens, but there should be some principles of our country held up. I hope our country doesn’t become engulfed in the type of mass mental illness like pre-WWII Germany or on a smaller scale, the post-WWII crazies the US had about the communists. We’re not getting there, are we?

  2. Kathryn Fenner

    Okay, so I’m a garden variety thug, and you think you can get me to say I’m going to whack somebody, or that my godfather is…is that any different?

    How hard is it to read someone Miranda rights? Just do it, because it’s the right thing to do, and we are better than they are.

  3. Phillip

    Purely political move to mollify those who think the Obama Administration is somehow “soft” on terror. There already is an exception to Miranda, for purposes of averting imminent danger or threat. Holder and Obama are merely trying to buy a little space for the anti-civil-libertarians to back off.

    For conservative hawks who dislike reading US citizens Miranda rights: imagine an Obama Administration that could pluck a few of the rowdier Tea Partiers with very sketchy links to militia types and detain these US citizens without informing them of their Miranda rights, on the basis that they are a threat to domestic security. Can happen now. Not so appealing, eh?

    Or, to pick a different scenario, a hawkish administration pursuing a war of choice decides that some protesters resisting that war are providing “aid and comfort” to the enemy, and citing imminent danger and “links” to possible terrorist organizations, detain and “interrogate” US citizens with no access to counsel.

    Well, they’d never go that far, would they? It’s when we think WE could never possibly be adversely affected by the surrender of basic American civil liberties, only “others” that the situation becomes treacherous.

    After all, our government has NEVER unjustly accused anybody of anything, right?

    And thus, this would-be terrorist who failed in setting off his explosive, STILL manages to pull off a bit of a triumph,as America chips away a teeny bit more at what makes it America. “The Constitution is not a suicide pact”? Give me a break. Are we on the brink of extinction? Are we committing suicide by saying, you may try to hurt us, kill some of us, but you can never, ever change the fundamental nature of American liberty, and can never defeat us militarily? Doesn’t sound like suicide to me.

    Why give in to fear? Why surrender to terrorism?

  4. Brad

    A couple of things: First, Pat — of COURSE it’s worrisome. If not for that, I wouldn’t bat an eye. Our prejudice should always be in favor of due procedure.

    Second, to try to clarify the issue. Our procedures for dealing with criminals — our whole system of police and prosecutors and courts — is aimed at making a solid case against the person who committed a crime. The key word there is “committed,” past tense.

    National security is about PREVENTING an attack.

    So you try to figure, what’s the best way to prevent something from happening? It usually involves having advance knowledge. So there are certain circumstances in which it might be desirable to write off the prosecution in favor of getting the info necessary to stop the attack. I’d rather have to release 10 suspects because I can’t bring a viable prosecution against them than let one act of terror that kills 100 innocents happen because I didn’t get the intel to stop it.

    There are some cases in which it’s more important to follow the rules and get a good prosecution. There are others in which it’s better to get the information.

    Trouble is, it’s hard to draft rules that can anticipate exactly when it’s better to do one or the other. And that’s what makes this a dilemma.

    As for garden-variety wise guys — you’re never looking at this kind of equation with them. Usually you’re dealing with them after the crime, and it’s not like their Family is going to go take out Times Square. It would be bad for business. Garden-variety criminals don’t do things like that. So the risks just aren’t the same. National security doesn’t come into it.

    Also, and I realize I’m taking your example further than necessary, with wise guys.

    People who try to blow up scores or hundreds of women and children and other civilians are NOT garden-variety criminals. It is the obligation of the state to protect the public from them to the best of its ability. So it’s natural that the people charged with that responsibility would want to try to figure out how a liberal democracy can best go about that while remaining a liberal democracy. They should. Forgive the cliche, but if they’re not thinking outside the box in a case like this, they’re not doing their jobs.

    And that means raising questions that we would naturally find uncomfortable.

  5. Brad

    To further complicate this: Faisal Shahzad has been very cooperative AFTER hearing his rights. So that’s good news. It would be great if we could assume all suspects would be like him. But that seems highly doubtful.

    He was interrogated for several hours BEFORE hearing his rights, under a “public safety exception” recognized by the Supreme Court. That was smart on the part of those holding him. Still, reading him his rights doesn’t seem to have shut him up. Even better.

    But again, it’s hard to know ahead of time how a given situation will play out. So the thing our society struggles with, valuing the rule of law as we do, is putting the right rules in place ahead of time that will respect the law AND give us the greatest possible chance of preventing bloodshed.

  6. Brad

    I wrote all those posts while Phillip was writing his, which is why I didn’t address him.

    Phillip, those scenarios seem a bit thin, about Tea Partiers and war protesters. Seems to me you’re reaching.

    What we have here is a guy solidly linked, at the time of his arrest, to a bomb that fizzled before it could kill dozens, if not hundreds, of citizens. Not even a close comparison.

    And note that what I’m talking about here isn’t some silly Jack Bauer fantasy about throwing away the book because it feels good just to beat hell out of the guy or something.

    There IS a book. There ARE rules, and they ARE different rules for criminal prosecutions and national security. What we’re debating here is where the line is between them. And I think the administration is trying in good faith to figure that out.

  7. Phillip

    Brad, of course I’m reaching, those other scenarios don’t seem terribly likely…but that’s exactly when we need to be most vigilent, when we are seduced by a false security that these “exceptions” to various civil liberties established in American society could never be used against “us,” or that we should “trust” that they would only ever be used against people who were a “real” threat to harm us. And even folks like me who like Obama and find themselves in accord with most of his political philosophy, must not succumb to the idea that just because we think “the good guys” are in office now, that we should think it’s ok to relax now and dispense with a few niceties like Miranda warnings. Once “exceptions” start being made, erosions to fundamental liberties, those exceptions are now there on the books, tools to be used by a government in a time that may be very different from now.

    Maybe you and I are living in a different country, Brad…the country I live in has struggled periodically with this issue for its whole existence, from the Alien and Sedition Acts at the end of the 18th century, to the Smith Act and the incarceration of hundreds in the 1950’s McCarthy era, to the harassment, surveillance, and jailing of civil rights leaders (under the auspices of the FBI) in the 1960’s and early 70’s, and on and on. As I said, it’s not like our government has NEVER jailed people for political views under the pretext of “national security.”

    If there is such a thing as a “war on terror,” it’s a war that we Americans must fight within our own hearts and minds, to find the courage to stay true to our core values, to fundamentally refuse to be terrorized.

  8. Pat

    “Just do it, because it’s the right thing to do, and we are better than they are.” I like that – doing a thing because it is the right thing to do. Those who are called to protect us have a heavy calling – deciding what is right, what applies and when it applies.

  9. Karen McLeod

    But Brad, when you decided that we don’t need to Mirandize a fellow citizen because we suspect (and until he talked, suspect is what we had on this guy–strong links, not proof)that he is a terrorist, then you have thrown away the rules. I agree with Phillip. A home grown terrorist with no links to any outside group can kill just as many. And we have fringe groups on both sides of the political spectrum talking trash. They are potentially dangerous. At what point do they cross the line? And who makes the decision about who needs to be picked up and questioned? And how long can these people be detained? And who knows about the detention. Do they simply disappear until such time as we either have a good case against them or we release them? If “these people” are citizens, then potentially they can be any one of us.

  10. bud

    National Security is just a euphamism for “Let’s go blow up Brown People”. The number of people who die because of terrorist acts is tiny compared to other ways of dying. Should we dispense with Miranda Rights for a nurse suspected of being a party to medical malpractice? No one would argue that even though she may have information that would stop a quack doctor from killing people. If someone is an American Citizen Mirandize them if suspected of a crime, period. Once we start giving cops unlimited power to coerce people the slippery slope becomes very slipper indeed. It’s only a matter of time before we become a police state.

  11. Doug Ross

    “Phillip, those scenarios seem a bit thin, about Tea Partiers and war protesters. Seems to me you’re reaching.”

    Phillip isn’t reaching even a little bit.
    I seem to recall the Bush administration using very questionable techniques to detain anyone who wanted to protest against George Bush — even in the most peaceful way. Wearing an anti-Bush t-shirt or holding up a sign was grounds for arrest.

    “Brett Bursey, of South Carolina, attended a speech given by the president at the Columbia Metropolitan Airport. He was standing among thousands of other citizens. Bursey held up a sign stating: “No more war for oil.”

    Bursey did not pose a threat to the president, nor was he located in an area restricted to official personnel. Bursey wasn’t blocking a corridor that the Secret Service needed to keep clear for security reasons. He was standing among citizens who were enthusiastically greeting Bush. Bursey, however, was the only one holding an anti-Bush sign.

    He was ordered to put down his sign or move to a designated protest site more than half a mile away, outside the sight and hearing of the president. Bursey refused. He was then arrested and charged with trespassing by the South Carolina police. ”

    Really, all they have to do is what they do now: quickly ship the terrorists off to a foreign location where they can be interrogated with whatever techniques are available… but off American soil so we can have a clear conscience and continue to claim the moral high ground.

    All American citizens deserve to be protected by the same rights even if there are consequences. Making it a judgment call will lead to abuses far more often than it will lead to useful information.

  12. Bart

    The Miranda rights issue has been discussed, debated, and to date, it is still there. Now, an administration, who is a perfect example of OJT, is flying a flag on the issue to see if anyone salutes.

    Phillip may not be off base with his scenarios at all. I happen to agree with him about how a change in the law can result in a far reaching interpretation and application under certain circumstances, depending upon how aggressive a prosecutor or law enforcement official may be. RICO was inappropriately applied to prosecuting anti-abortion protesters. The original law was not intended for anything other than going after organized CRIME, not protesters.

    I may not like Miranda in every situation but it is the law and I would not want to be accused of a crime and not be able to have an attorney present during questioning. The Times Square bomber IS a citizen of the United States and therefore is protected under our laws.

  13. Doug Ross

    Which parts of the Miranda warning do you want to push into the grey area?

    “You have the right to remain silent”

    Seems like the only alternative here would be torture.

    “Anything you say can and will be used against you in a court of law”

    So? What’s wrong with that?

    “You have the right to talk with an attorney and have him present during questioning”

    Unless there is an IMMEDIATE known threat, shouldn’t an American citizen have the right to understand the legal aspects of his situation?

    “If you cannot afford a lawyer, one will be appointed to represent you if you wish”

    Another issue of timing.

    “You can decide at any time to exercise these rights and not make any statements”

    And the alternative is what? Torture?

    It’s a simple solution. American citizen? Read him his rights. Immediate threat to the public? Torture him to get the answers and deal with Miranda issues later. That’s what they’re going to do anyway so why make a big deal out of it?

  14. Brad

    OK, we’ve got a lot of emotion going here. Out of all the things said in the last few replies, I’ll select Karen’s observation that this discussion of when to Mirandize involves “throwing out the rules.” No, it doesn’t. This is about clearly defining the rules. And the challenge here is that it’s very, very difficult to draft a rule in advance of a situation that covers all of these variables. So I sympathize with those trying to define them correctly.

    And Phillip, when you say, “If there is such a thing as a ‘war on terror,’ it’s a war that we Americans must fight within our own hearts and minds…” all I can say is “Huh? How do you figure?” I kind of figured that the immediate enemy here is the people who are just trying like all get-out (and thank God they so often turn out to be gross incompetents, which makes it always a surprise to me that these terror groups are eager to claim them) to blow people up on their way into Starbucks.

    I take a back seat to no one when it comes to struggles in the heart and mind. Check out my Facebook profile. It only has one quotation, from Catch-22: “I wouldn’t want to live without strong misgivings. Right, Chaplain?” And that speaks to what underlies this post. One reason I raise this question is to illustrate how difficult these issues are — and yet I seem to get responses that are based in wanting to keep it simple.

    What I’m groping for is the meeting point between the absolutes with which people comfort themselves in the drawing room and the issues that the people who pick up the bodies at the scene of a bombing deal with, and the people charged with making sure another bombing doesn’t happen.

    Let’s discuss this absolutes thing. Do you really think rights are by definition absolute? If you do, you’re certainly not alone in this country. But what tends to interest me are the exceptions, the places where people encounter situations in which they have to think through complexities without a simple roadmap.

    For instance… Matt Drudge brought my attention the other day via Twitter to a story that indicated that Elena Kagan held that while the right guaranteed by the 2nd Amendment was important, there were limits to it, because there are other considerations that are important as well. She compared it to the limits that exist on First Amendment rights. We’re all familiar with those, from the “shouting ‘fire’ in a crowded theater” exception to libel and copyright laws.

    Of course Drudge was expecting his audience to react with horror to the notion that this horrible liberal woman could even CONSIDER limitations to the sacred 2nd Amendment, but how could an intelligent person not consider that there are limitations?

    Does anyone see what I’m saying? One thing I’m NOT saying is that I know where the answer lies. I’m not sure where the legal and constitutional boundaries should lie. I just know that it isn’t simple, and I respect Mr. Holder and the others who are struggling with it.

  15. Brad

    I’m not trying to “push” anything into anywhere. I’m acknowledging that these different standards already exist for different situations, and the trouble is that our cops and courts are struggling with how to correctly and legally apply those differing standards.

    And Doug, do you ever tire of posing false choices, and demanding that your interlocutor choose? “Torture” is not the “only alternative” to silence. Look no further than the Times Square suspect, who apparently just keeps singing. Lots of people do that, left to their own inclinations.

    Another example of trying to make this simpler and more absolute than it is.

  16. Brad

    It occurs to me that Doug doesn’t have the experience I have in extracting information from people. The best sources, the ones who give you the most golden quotes and information, are the ones who just blab on and on, and you find yourself afraid to move or say anything, lest you break the spell.

    I haven’t tortured an interview subject yet. Although some might regard some of the meetings I’ve put them through as a violation of the Geneva Convention…

  17. bud

    Brad, I’m really puzzled. You acknowledge you’re able to obtain information without resorting to torture and in fact suggest it’s the best way, yet somehow tacitly support the concept of withholding certain American citizens their Miranda rights. This really is pretty simple, just Mirandize all suspects under all circumstances. Otherwise that grey area creaps ever further into tyranny.

    Besides, does the Times Square bomber example really serve the pro-torture crowd’s agenda very well? The guy talked. Would he have talked more had he been tortured? Seems like tortured logic to me.

  18. Doug Ross

    It’s not a false choice. It’s the real choice that the government apparently wants to have at its disposal – an option to rescind the rights of an American citizen.
    Do you think saying “You have the right to remain silent” somehow diminishes the ability to ask questions?

    If it’s an immediate danger situation and the person refuses to speak, you think you’ll be able to wear him down by asking him questions in some other way? Or offering him an ice cream? From your own description of your “technique” it has more to do with the willingness of the person to speak than your cleverness at getting him to do so.

    What techniques would you suggest are effective when trying to deal with an American citizen who may have information related to an imminent threat but who refuses to speak? I’d love to hear what approach you would take besides “go on… go on… and then what?”

  19. Doug Ross

    You want to talk about exceptions to giving an American citizen his Miranda rights, correct?

    Well, give us example of the exceptions that would warrant that and what you would expect to do instead?

    As I said, you can read the subject his rights and then do whatever you want to try and get him to talk (torture, deals, threats, bribes) — what difference does reading him the rights make?

  20. bud

    Brad you think YOU’RE frustrated. As and American I find this discussion very, very scary. If we open the door to making it acceptable NOT to Marandize we start down a VERY dangerous path that HAS to lead to torture. You didn’t have to say it, that’s what would happen and that’s the direction Bush took us for 8 tortured years. Now we have Obama, a man that I thought would be better, but precident has been set. Now if we Mirandize an American citizen the right explodes in a fit of rage. Bush opened the door and now it’s damn near impossible to shut it. That’s why it’s so important to be constently be vigilant when it comes to our precious rights.

  21. Brad

    I didn’t realize that Eric Holder worked in the Bush Administration. Who’da thunk it? He doesn’t have horns or anything…

    That’s where this discussion started, folks. With Eric Holder.

    And to give you, Doug, an “example of the exceptions,” I give you the one that the Supreme Court provided in 1984. Way, way before that wicked ol’ Bush ran the country straight to hell and tortured us all for 8 straight years. (I still bear the scars; don’t you? However did we all survive? And now, golly, to hear those Republicans tell it, we’re in the grip of “radicals” running the country straight to hell through another entrance “threatening our very way of life.” Oh, woe is us! I don’t know about you, but between Bush Derangement Syndrome and its Obama counterpart, I’m getting whiplash.)

    It’s called the “public safety exception,” and it’s what we’re talking about here.


  22. martin

    It strikes me that those who don’t want to Mirandize terrorists, despite all the they-are-not-criminals stuff, think they will react when questioned like the little neighborhood thug and shut up when reminded they have certain rights.

    Terrorists are very proud of what they are doing. Then, all of a sudden they have that FBI or CIA agent, what a symbol of American authority, giving them all that undivided attention. What a great opportunity to to run their mouths about all the planning that is going on to destroy the imperialistic dogs!!!

    Well, maybe just keep them perpetually terrified so that the Americans throw out everything they have ever held precious to fight them. Gee, sounds like the terrorists won.

  23. Brad

    Martin, for a moment there I thought you were actually engaging the subject, pointing to a very real difference between terrorists and regular crooks — their love of boasting — but then you stopped your line of original thought, and fell back on the “if we don’t extend the full rights of American citizenship to everyone, the terrorists win.” Which itself was a good point to make about the first 100,000 times anyone said it (starting with me, in a piece I seem to recall having written on Sept. 11, 2001). Yeah, OK, granted — we all value the ideals of our liberal democracy. Let’s consider that a starting point, a shared value, a highest common denominator, if you will. Now, a guy who shares those values, Obama’s AG, is raising a question that challenges us to think beyond that convenient thought that warms all out hearts.

    Your point about terrorists being immune to the mouth-closing magic of Miranda was relevant and spoke to the issue. Anyone else want to address the subject at hand?

  24. Brad

    Guy! GUYS! Who’s pro-torture? Nobody here? Not me. Not Eric Holder. Not anybody who is actually wrestling with this thing the way it really is.

    Is there anyone out there paying attention to the words I’m typing here? This is frustrating…

    Wait… this is some new kind of torture, isn’t it?

    Actually, it’s an old form, a favorite of brainwashers (just to go on a total digression here). You isolate your subject in a cell in which he can’t tell whether it’s day or night, and never turn out the lights. You bring him his meals at bizarre intervals to increase the sense of time dislocation — not feed him for 48 hours, then come in with the next meal 5 minutes later.

    Then you ask him a question. Say, “What color is the sky?” He says blue, and you slap him and tell him it’s black and leave. Next day (or five minutes later, only you pretend it’s the next day) you ask him again, and he says black, and you slap him and say it’s white and leave. And so forth. Finally, he’s desperate to give you the “right” answer, if only you’ll tell him what it is.

    Another aspect of this routine is to make the subject doubt who he is and what his own motives are, using similar techniques.

    Anyway, I feel sort of like that. No matter what I say, y’all slap me up side the head and say no, I mean something else.

    To someone like me, who is all about doing his best to explain exactly what he means clearly, it is indeed a form of torture. Virtual torture, anyway.

  25. Doug Ross


    Your link says:

    “The public safety exception stems from a 1984 case, New York v. Quarles, where the Supreme Court ruled that statements given to police under questions prompted by a public safety concern are admissible in court. ”

    So the exception is related to what can be presented as evidence in a court case.

    How does that have anything to do with whether you should read the subject his rights in the first place? or what you do after that?

    And the subject in that case WAS read his rights after giving up some information. So it was more about evidence than coercing additional information.

    Your link doesn’t help your case.

    It says:

    “The courts have never defined the parameters of the exception, and it’s not clear how it applies in terrorism cases.

    But in at least one case, a federal court contemplated the use of the exception an international terrorism investigation, perhaps providing the foundation for the Obama administration’s approach. The case, which grew from the investigation of the 1998 U.S. embassy bombings in Africa, was decided in November 2008, in the gloaming of the Bush administration.”

    So it was Bush who tried to go around the Constitution using the questionable 1984 case as a basis. And even it involved a situation that occured overseas, not on American soil.

    I think the majority of us don’t want to see basic rights tweaked in the name of “THE WAR ON TERROR!!!”. Martin’s correct – if we do that, the terrorists win.

  26. Brad

    We’re just not getting anywhere, are we?

    I thought this was a good opportunity to get people to try thinking in new ways about new problems. I guess I was wrong.

  27. Susan

    While I’ve read everything you all have written here, I don’t think I quite get why this is such a big issue (to either side). So, I’m not sure why not Mirandizing is important to some — I would think that a terrorist type would have been trained in their basic right not to self-incriminate along with how to make a bomb, so telling them before questioning them would be something of a formality.
    But on the other side, why is it so important? Miranda Rights didn’t exist until 1966, and that didn’t make us a police state before that — why would it lead to that now? Does removing the Miranda Rights warning somehow imply that now they don’t have the right to not self-incriminate? Or that we can torture them? We aren’t taking away their rights as citizens, right? Just modifying when someone must be reminded of their rights.
    Personally, though, since I’m not seeing why it matters that much either way, I’d probably tend to go with Mirandizing them.
    Or maybe I just don’t understand what Miranda Rights are. What am I missing?

  28. Karen McLeod

    Brad, how do you make rules about removing a citizen’s rights when you have no certainty about what he has done? Do you have to catch him in the act (the only way of being certain that he’s truly the one attempting the act)? That would easily fall under the “public safety” exception. Do you arrest people whom he implicates (he always hated your blog…used to read, and brood about it in secret…and now the perfect opportunity to get you)? What are the limits? How long can the state keep these people under wraps? In what situations? What are the safeguards to consequate abuse of these new rules, for there will always be abuse? I think we have always had terror and threats thereof, or treason and threats thereof. I just don’t see any major loss to us if we continue granting all citizens their rights. I see potential for much greater harm by granting government the ability to deny rights based on the government employees’ (ie. FBI, CIA, local police, etc.) judgement.

  29. Brad

    Oh, and Doug — I wasn’t make a “case.” Where in this post or the following thread do I say, “THIS is what we must do, and THIS is when we must do it.” I was holding up a question raised by what the attorney general said.

    But too few of my readers even see it as a question. They assume they have it all figured out, and treat the question as some sort of assault on their fundamental values.

    Anyway, I’m posted a bunch of other stuff since this. Let’s talk about that…

  30. bud

    Actually Brad I think we ARE getting somewhere here. Seems like the Constitution is something we all take pretty seriously and when it’s suggested we give up some of our rights folks get a bit snippy. I sure do.

    My reference to the Bush administration was one of warning. Bush denied folks their rights, justified by the need to get the terrorists (remembering wire-tapping). Now the Obama administration has a delimna. Do they go back to the way it was pre-Bush, or accept a new paradigm where rights can be suspended if not doing so can be demonstrated as sufficiently scary.

    Seems like pre-Bush was a good way to go. Hopefully we can get there but those darn slippery slopes are sometimes hard to climb.

  31. Brad

    THANK you, counselor. I knew that, and should have known better than to say “rights” in the headline. I’ll go back and change it. Maybe that will help people engage the topic.

    You put your finger on why I was going “huh?” when Doug said something about this being related to admissibility, and wondered why that was relevant. Miranda isn’t about RIGHTS; it’s about procedure. Sorry if I contributed to confusion on that point.

    Oh, and thank you, too, Susan. And yes, in this Times Square case, the Miranda warning made no difference. He’s blabbing away like he never heard a word. But the Holder question was about future cases.

    I’m listening to that video as I type this. WOW, that guy needs to cut back on the caffeine…

  32. Kathryn Fenner

    Yes, he had a lot to say and not a lot of time….but I think it illustrates better than anything else how you can be totally innocent and end up screwed…if you talk w/o benefit of counsel.

    Most people don’t realize this.

  33. Susan

    Thank you, Kathryn.

    Then it looks to me like the Miranda warning issue is acting as a sort of proxy for what is really the thornier issue, which is where we will draw the line between national security/military and domestic/policing policies.

    What are those things in space that you can’t see, but everything’s attracted to them? Black holes? So we try to talk about Miranda, but end up getting pulled into another orbit entirely….The more general issues do keep me up at night, but I think this Miranda one, not so much.

    And apologies to all those who feel like they WERE talking about Miranda and I just don’t get it. You’re probably right.

  34. Phillip

    Brad, don’t be discouraged, “we’re not getting anywhere,” etc.

    In my gut I feel that Obama and Holder are conscientious people who would like to strike these careful balances that you are talking about. Certainly we must take all reasonable steps to foil all terrorist attacks in the US (a goal, I must remind you, that is not 100% attainable short of a police state). But to have folks of various political persuasions (me, Doug, Bud, Bart, just to name a few) raise strong red flags over the structural erosion, however well-meaning, of civil liberties, is to me a healthy sign.

    Being a fierce defender of civil liberties is (or should be) the ultimate Unparty platform. Yes, the questions that you raise and that Mr. Holder seeks to find answer for, are worthwhile questions…but it’s only right, just, and fair that raising these questions stir up spirited debate, and trigger warnings to our leaders to use extreme caution when exploring “exceptions,” “flexibility,” etc., in the name of national security.

  35. bud

    I guess where Brad and I differ most on this issue is the premise of the argument we start with. Brad regards the whole “war on terror” thing with the utmost importance. If we don’t stop the terrorists they’re going to slaughter 10s of thousands of innocent Americans and destroy the very fabric or our society. To Brad, it’s a small price to pay to suspend a tiny bit of our cherished freedoms in order to combat this menace.

    But for me the war on terror is really not much of a war. Statistically the odds of dying in a terrorist attack that originates from a foreign organization is very, very low. And for me the policies we’ve followed over the past 3 decades or so are just way overblown. It’s more of a police action that should mostly involve good detective work to ferret out a few misguided soles who find our involvement in the Middle-East offensive. Regardless of how good a job we do with our detective work we’ll never stop all the terrorist acts. We could certainly reduce the threat dramatically by simply removing all our troops from Iraq and Afghanistan. That would pretty much eliminate much of the incentive for these folks. Life has risks and the risk from terrorism is probably not be in the top 25.

    Given the very low threat level we face from these people I don’t think we’re anywhere close to the necessary thresshold where we should consider suspension of rights or exceptions to Miranda warnings. It’s just not a good tradeoff.

  36. Mike's America

    Brad: What a bees nest you stepped in!

    Now you are for “torture” too?

    Good grief, I haven’t read such hysterical nonsense since Obama said that illegal immigrants going out for ice cream in Arizona might be rounded up!

    Apparently, it’s impossible to have a much needed discussion addressing the issue of terrorism and civil liberties without some people going off the rails at the very mention of the topic.

    I have a great number of beefs with Atty. Gen. Holder (see my latest post:

    But I’m going to beat Holder up when he FINALLY does something right to protect the American people.

    Still, if anyone who is concerned about this miranda issue wants to join me in pressing for Holder’s resignation they are welcome.

  37. Pat

    Phillip’s “But to have folks of various political persuasions (me, Doug, Bud, Bart, just to name a few) raise strong red flags over the structural erosion, however well-meaning, of civil liberties, is to me a healthy sign.”
    It IS a healthy sign.


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