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Mar 25 2011

Taking Back America: Assault on the Constitution by Obama

(2 pm. – promoted by ek hornbeck)

Does anyone recognize this man?

Obama said the United States can effectively fight al-Qaida and its affiliates, “but we must do so with an abiding confidence in the rule of law and due process, in checks and balances and accountability.”

“We must never — ever — turn our back on its enduring principles for expedience sake,” he said.

Speaking in Washington’s National Archives building, where the U.S. Constitution, Bill of Rights and Declaration of Independence are kept, Obama said the United States must continue to see those documents as the “foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity around the world.”

That was President Barack Obama less than two years ago. My how this man has shed his skin and aligned himself with all the policies he condemned.

Rights Are Curtailed for Terror Suspects

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

snip

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

Some bloggers with more legal background than I have (which is not much) are questioning the authority of the DOJ to change Miranda rights without legislation or a Supreme Court ruling.

From Jeralyn Merritt at Talk Left:

The remedy for a Miranda violation is suppression of the statements, and any evidence derived from them, at the trial of the person who made them. Other defendants ordinarily wouldn’t have standing to challenge the statements at their trial, since it wasn’t their rights that were violated. But, what if there’s a policy that intentionally flouts Miranda? Is that a due process violation like outrageous government misconduct that could be raised by defendants against whom the statements were offered even if they weren’t the person whose Miranda rights were withheld?

At emptywheel, bmaz has this to say:

This type of move has been afoot for almost a year, with Eric Holder proposing it in a string of Sunday morning talk shows on May 9, 2010 and, subsequently, based on Holder’s request for Congressional action to limit Miranda in claimed terrorism cases, Representative Adam Smith proposed such legislation on July 31, 2010. Despite the howling of the usual suspects such as Lindsay Graham, Joe Lieberman, etc. the thought of such legislation died in the face of bi-partisan opposition from a wide range of legislators who actually understood Constitutional separation of powers and judicial authority. They knew the proposed legislation flew in the face of both concepts. And they were quite correct.

It was bad enough for the Obama Administration, headed by the supposed and so called “Constitutional scholar” Barack Obama, to propose inappropriate and unconstitutional legislation to restrict criminal suspects’ Constitution based Miranda rights, but it is an egregious step beyond to simply arrogate to themselves the unitary and unilateral power to do it by DOJ memorandum fiat.

(emphasis mine)

And the final word from Glenn Greenwald at Salon:

The right here is established by the Supreme Court as guaranteed by the Constitution, and the specific right in question — not to have pre-Miranda statements admissible in court — is one the administration cannot change and does not purport to. But the guidelines long in place for reading a detainee his rights were vital to preserving the Miranda framework — for preventing abusive interrogations and coerced statements — and it is this protection which the Obama DOJ is seriously diluting with such a permissive and discretionary standard.

Worse, the administration tried but failed to convince Congress to modify it with legislation. But, as we well know, nothing deters a President’s will: so they just went ahead and did it on their own. The very same political faction that spent the last decade decrying assertions of unconstrained executive power and the ignoring of Congressional will in the area of civil liberties is now its enthusiastic champion.

When it comes to debates between Left and Right over the Constitution and due process, Miranda has always been viewed as one of the key defining issues. Richard Nixon was obsessed with demonizing the Warren Court for providing too many rights to the accused, and his attacks on Miranda were part of a decades-long war by the American Right on the constitutional liberties established over the last half-century. With a swoop of a pen — more than 9 years removed from the 9/11 attacks — Barack Obama has done more to erode Miranda than any right-wing politician could have dreamed of achieving.

What they said.

2 comments

  1. TMC
  2. davidseth

    that O would do this.

    This is really just an outright assault on Miranda. The fact is that any real terror suspect who’s arrested knows that he’s not supposed to talk and has the right not to.  That’s why they wanted to be able to use “harsh interrogation methods” on trained soldiers.  So it’s not about the terror arrests.  No.  It’s about slowly and methodically making various exceptions to and undermining the Miranda rule.  First it doesn’t apply in terrorism cases, and then it’s something else (“emeregencies”) and then it’s something else and soon the rule is Swiss cheese.  At the same time, “terrorism” is a handy first swipe at the rule because if that could justify torture of various kinds, it surely justifies not reading people their rights.

    And a Constitutional scholar is doing this?  Gimme a break.

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