Carving Miranda

In our latest episode of ConLaw Obama is to Civil Liberties what MBA Bush was to the Economy, we’ve been learning the past few days that Eric “Midnight Pardons” Holder is invoking a “public safety exception” to Miranda rights that allows agents to question suspected terrorists for a few hours before letting on that they don’t have to talk. (They’re talking afterwards anyway, but we’ll let Liz Cheney lie about that one.)

We’ll get to the details in a moment, but the exception is based on a 1984 Supreme Court ruling that Holder has been artfully interpreting. Under the ruling, if there’s an immediate danger to address, you can wait a moment before pulling out the Miranda card. Holder waited more than a few moments in the cases of the Underwear Bomber and the Times Square Nickname Pending, and now he wants to formalize his improvisation:

The public safety exception was really based on a robbery that occurred back in the ’80s and something to do with a supermarket. We’re now dealing with international terrorists, and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face.

Because, as they say, two failed bombings changed everything.

Of course, we understand what Holder’s getting at. Both Miranda and its exception were based on everyday cop-show crimes. Here we’re facing potential networks of violent crime, something we’ve never seen before. Unless you count the Mafia. Or gangs. Or the Weathermen.

But since we’re stuck with the issue this week, let’s ground ourselves before the abstractions start hitting the fan.

The subject of the Miranda decision was coerced confessions. And not just the highly entertaining Jack Bauer method of shooting thighs. Confessions stemming from the textbook method of locking someone in a room until he squealed were equally suspect. Earl Warren took the Fifth Amendment very seriously: your Constitutional right not to incriminate yourself required good-faith protection.

But Warren didn’t pull the cop-show catechism out of his arse: He copped it from the FBI — Hoover’s FBI, mind you — where it had been standard procedure for years. In popular terms, Efrem Zimbalist, Jr., knew the lines long before Jack Webb did.

As history would mischievously have it, it was William Rehnquist who presided over New York v. Quarles, the 1984 decision that carves out the “public safety” exception which Holder is driving a truck through. And while Rehnquist all but sneers at the “doctrinal” Miranda rules — he refers to the Fifth Amendment as a “privilege” — he’s careful not to undermine them.

Rehnquist’s “narrow exception” is just that. After NYC cops had cuffed a suspect at a crime scene, they noticed that his holster was empty. Where’s the gun? they asked. Over there, he said. The cops found the gun, read the dude his rights, and then asked him whether he owned it. Rehnquist was cool with the sequence, and we see no reason to disagree. We’re a long way from the cases that disturbed Warren:

We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.

(Note to Teabaggers: You won’t find better statist language than that. We may agree with Rehnquist’s decision, but his framing sucks.)

Just to underline the point, Rehnquist repeats it:

The exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.

The facts of this case clearly demonstrate that distinction and an officer’s ability to recognize it.

To be anachronistic about it, Rehnquist was addressing a real ticking time bomb: Not the apocalyptic fantasies of soon-expiring television programs, but the practical challenges of everyday street crime. He may have mocked and misunderstood Warren’s concerns (as well as the Constitution itself), but he let Warren’s principle stand.

The point of the Bill of Privileges Rights in general, and the Fifth Amendment in particular, is to protect the individual from the state — a state that, in our nation’s history and especially recently, has been all too willing to trample those rights in the name of (but not the exercise of) public safety. As this week’s debate heats up, bear in mind that we can’t always trust the good faith of players in the Executive Branch. And for some folks, that includes the current team.

Holder: Obama Admin Seeks Changes To Miranda Rule [TPM]

Miranda v. Arizona [Cornell]

New York v. Quarles [Justia]


That’s splitting a hair mighty fine Mr Holder.

TJ re Kagan nomination:

So will the GOP assign closet-case Lindsey Graham to interrogate Kagan about her sexual orientation and whether that will impact her decision on the Prop. 8 case?

They only said Barry was a Constitutional law professor. They never claimed he was a very good one.

You should perhaps be aware that Rehnquist refers to the particular 5th amendment right which underlies Miranda as a “privilege” because the word “privilege” is a term of art in the law of evidence which refers to testimony that cannot be compelled. For example, there have been many efforts made by lawyers representing journalists to establish a 1st amendment “privilege” which would shield journalists from being compelled to divulge their sources. The 5th amendment right not to be compelled to incriminate yourself is, technically, a “privilege,” albeit a constitutional privilege, and thus a “privilege” to which you have a constitutional right. In other words, you misread Rehnquist when you suggest he uses the term “privilege” “sneeringly” or in an effort to lessen the importance of the right in question.


By the time the GOP gets done with her, she’ll be the second coming of Ethel Rosenberg.

wouldnt it be awsum if she just came out in the hearings?

@Original Andrew:
most of the squawking I am hearing this morning is from the left

Here are the very words from Warren’s decision in Miranda which concisely set forth the court’s holding:

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to [384 U.S. 436, 479] protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. 48 ”

Yup, the Miranda decision itself “sneeringly” refers to the right it creates as a “privilege.”

That word, I don’t think it means what you think it means.

@Original Andrew: The executive branch in its law enforcement capacity may take a position, stake a claim, but the courts will determine the validity of that position. Bush’s worst sin in the way he treated terrorism suspects was to deny them access to the courts, deny them even of a trial during which a judge could consider things such as whether the public safety exception should apply to the privilege against self-incrimination. Holder’s position regarding the Quarles exception may not hold up, but what is clear, is that this not-yet-nicknamed incompetent bomber will in fact be charged, and tried in a court, and afforded every right every criminal defendant is afforded, and Holder’s interpretation of Quarles will either be upheld, or rejected. The rule of law is in place, and the decision will not be made by executive fiat. I think comparing Obama to Bush on civil rights is, well, not accurate, there is no comparison, he is not perfect, but he is so much better as for their to be no valid comparison.

@Capt Howdy: Oh, boy do liberals hate this Kagan pick; look at this glorious savaging, its a slightly more decorous “Chainsaw Treatment” of Kagan and Obama, for picking her:

@Prommie: Tea-bagger language seems to be consuming the left as well.

I think the FDL response would have been something like that no matter who it was. that site has been completely taken over by the PUMAs it seems.

@Capt Howdy: Ah; they pine for Hilz, then?

@Benedick: Is that where “statist” comes from? Social luddites. They only hate the state because a black dude is in charge, anyway.

“Elena Kagan husband” is the fifth most popular search on Google in the past hour.


its now 3. Kagan husband is 5 and Kagan personal life is 8.

My internet boyfriend (though he doesn’t know it) on Kagan:

Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.

Of course, defending his assertions has been her job, one could argue…but why would anyone take that job, if not for careerism?


“As adults know, hope is for little kids and tooth fairies”.

Happy Monday everyone!


I read the comments. Whoops. Can’t say they’re any more idiotic and incoherent than our legal “system” itself, though.

Iz our gaze married?

All the senatards will vote for her if she lets them watch.

@rptrcub: There’s no constitutional right to opposite-sex marriage, either. I think that was a slippery answer to a question without actually commenting on equal protection, that made her look more palatable to Cornyn than she otherwise would be. She’s been living with the same woman for more than 15 years, it’s the biggest open secret in Cambridge.

That said, she was not my top choice of the non-judge candidates. I prefer people who aren’t afraid to take a public stance on issues, and who work on behalf of their beliefs, but there was no way in a million years that Obama would have nominated a Karlan, Dellinger, or Chemerinsky, which is just too bad. Given the treatment that Goodwin Liu is getting for a 9th Circuit nomination, it’s not surprising it’s Kagan.

@Original Andrew: No, dear. The lesbians have to be young, hot, Playboy centerfolds. Believe me, no one wants to see Elena. Bless her heart.

Anyway, trampling on the Constitution, death of hope, blah blah blah.
People, focus: crimes of fashion are being perpetrated in this White House. My EYES.

@rptrcub: But how could there be a constitutional right to same sex marriage? Such a thing was undreamt of when the constitution was written: no? So her answer would be correct. But it doesn’t mean she’s against it in principle.

@Mistress Cynica: What the hayell is that skirt/sarong wrapped around her lower half? Did a colorblind person match that top and bottom?

ADD: Wait, is she wearing a skirt or knickers?

@Mistress Cynica: I think she seems to be finding a very persuasive style to replace the frump-suit usually worn by 1st women as a ‘feminine’ answer to the power suit. It’s St James’s garden-party redux – just formal enough – without the ridiculous hats worn by our poor dear queen. Plus the bright, bold prints give a hint of black style without getting in Lindsey Grahame’s face. I think it’s very well judged. I would agree that the bottom half of this particular toilette is somewhat peculiar but that could be an unfortunate moment de snap. And the print itself does carry overtones of sofa cushions. But I for one love to see a woman dress and act like a woman of accomplishment and experience without pretending she’s a runway model. Good for her. She’s got curves and she’s not afraid of them.

Oh, and plus, thanks for returning us to what’s important. After all, if we lose our values the terrorists have won.

Maybe Rosie O’Donnell is available? We know more about her legal Views.

Is she really a lesbina, or is she just solidly built and single?


statist [ˈsteɪtɪst]
1. (Government, Politics & Diplomacy) an advocate of statism
2. (Mathematics & Measurements / Statistics) a less common name for a statistician
3. (Government, Politics & Diplomacy) Archaic a politician or statesman

stat·ism (sttzm)
The practice or doctrine of giving a centralized government control over economic planning and policy.

In other words, to call any of our current political figures statists is a bald-faced lie.


Heh. While I’m not familiar enough with Kagan’s record to comment on Greenwald’s characterization, part of me wonders if this isn’t a political play by Barry to get every Rethug to commit to that sort of statement – especially the ones that thought Miers was the best thing EVAR.

Either that, or he’s secretly given up getting anything worthwhile done this year and has devoted the time to producing Daily Show b-roll of Republicans saying stupid shit. :)

It’s looking to me like the Kagan nomination wouldn’t be nearly so vilified by many on the left were there not such enormous disappointment in many of the other actions and inactions of the Obama administration. Lefty peeps are mighty sore at the administration’s catering to its enemies.

Speaking of catering, when’s lunch?

Frank Frazetta died. Im bummed.

@Prommie: I’ll take your point on sneering, but I’ll stick by the broader judgment: I read Miranda, and then Quarles, and the difference in tone was astonishing. Rehnquist was all but caricaturing Warren with his blather about the needs of society, and all but ignoring the needs of the Fifth Amendment.

And “statist” here is a swipe at libertarian teabaggers, since it’s one of their favorite Aynesque words to drop. The rights of a citizen in Quarles are difficult to find, and the prerogatives of government ample.

@nojo: Rehnquist never does seem to think of “criminals” as “people,” much less citizens. Nevertheless, there is a later decison from 2000 in which Rehnquist wrote the opinion which has been interpreted as raising the status off the Miranda warning to the level of a substantive 5th amendment right, as opposed to a prohylactic evidentiary rule, which got Scalia cursing and spitting in dissent. Rehnquist, of all people, overturned a law passed by congress which would have created an exception to the Miranda rule. Legislating from the bench prick.

Randtard and Paultard libertarians are really stupid motherfuckers. Mean and selfish and I think, generally, a symptom of a generation of children raised in isolation, in the years since the world suddenly became too scary to let your children go out and play (lion and tigers and molesters and amber alert, Oh My!) and instead these people watched the idiot box and played violent video games and had no natural, munstructured social life in their formative years.

I am sorry, I would have thought that you were referring to the insane “statist” rhetoric of them ones, except it came right after you were obviously sincerely describing the bill of rights in terms of being a check on state power over the individual, and saying how Rehnquist is all about the power of the state.

You see, putting it in terms of “individual vs. the state” to me, well, its a sign of alienation, you view the state as an “other.” Philosophically, I have always thought of the role of the bill of rights as in limiting the power of the majority of the people, over the minorities, including individuals. I mean, assuming that this is a functioning democracy (what is that in greek, “reign of the people?”) the government is the people, not some imposed “other” that sits over and above the people, this alienation is part of the teabaggers problem. The Bill of rights is a bit of fine-tuning of our particular version of modified majoritarian democracy. The very notion of a “constitutional democracy” was created by our bill of rights. True democracy requires consensus on all state action, so thats impossible, majoritarian democracy, in which “the majority rules,” has one little problem, in that under this form of government, the faction with a 51% majority, can declare the other 49% of the people to be, anathema, null and void, subhuman, and kill them and take their stuff. This is how bannana republics, and republicans, think democracy should work, by the way, and the republicans make this very clear by their actions in power. But anyway, see, thats a distinction, I don’t think of the bill of rights as protecting people from this seperate “other” entity called the state, I think it protects individuals and minorities from the tyranny of the majority. And the fact that the Constitution can be changed by a supermajority, much closer to consensus, this is all part of the genius of the system of creating a working approximation of a “democracy.” Separation of powers, bicameral legislature, these things aren’t related to the same concerns about the inherent danger of a tyranny of the majority in a “majority rules” democracy, these things were efforts to reduce the effects of individual greed and power lust, among those in the government, and also institutional corruption and power aggregation by the institutions of government, purely practical devices.

@Prommie: One thing I appreciated about both decisions: They were very clearly addressing practical issues, with ample examples.

Holder may have a case for what he wants to do (Warren cites an FBI rule that allows non-incriminating questions), but he’s abstracting the “public safety exception” way beyond the circumstance that gave rise to it. I didn’t know where I would end up on this one, beyond being very wary about it.

@nojo: Yes, it would appear to me that the Quarles exception has never been used to allow, for example, Jack Bauer-style torture, so as to find out where the nuke is hidden. Not even close, its almost always about, “where’s the gun,?” and even then, only if the cops know the gun is real close, almost in reach.

But, well, attempted mass-murder style terrorism, it does present I think public safety issues far more compelling than the mafia. The mafia generally only killed its own, or those who willfully got tangled with them, and did it one at a time, and nobody would even think of an exception to Miranda based on the need to prevent a property crime, or a drug deal, or anything else the mafia would be up to.

This isn’t good, but may be necessary, I do think. The thing that I do still believe is miles and miles above the way the Bush admin viewed these situations, is that the Bush admin took the position that the whole thing should be taken outside the criminal system, with no procedural or substantive rights afforded the terrorists whatsoever, unless Bush as imperial commander in chief felt like creating some kind of farcical kangaroo-court procedure for publicity purposes. Those days are over. Holder is going to indict this guy. Holder’s Quarles theory will be considered by the courts. Even if Holder loses, it won’t matter, because if its found that the interrogation was illegal, that just excludes the evidence gained as a result of the interrogation, this guy is dead meat even if that evidence is excluded.

I will be honest, if I were the president, once I knew there was enough evidence to convict, I would have ordered a flat-out illegal, miranda-violating interrogation (no torture, mind you) not for the purpose of finding evidence for use in this guy’s trial, but for the distinct purpose of obtaining intelligence about who helped him, who paid him, who badly trained him. I wouldn’t want anyone to know what he told me anyway, so I would have no plan to use it in court, again, assuming there is enough evidence to convict without the fruits of the illegal interrogation which I would order, if I were The Man.

@Capt Howdy:

I was kinda serious. I’m sure right-wingers can’t tell the difference between a real lesbeyon and a woman they imagine to be of the build and temperament of same. Is she out, or are people just imagining she is because she fits some of the stereotype?

@Prommie: Yes, the fact we’re even talking about Miranda is an improvement over the previous regime. And Warren’s concern was clearly coerced confessions stemming from hours-long questioning in windowless rooms. We are indeed a long way from that and the Queens A&P.

Reading the opinions, I think Rehnquist was reacting more to the evolution of Miranda than Warren’s original judgment. (Although his framing of the issue remains highly suspect.)

Warren’s principle was good-faith protection of a citizen’s Fifth Amendment rights, not a dogmatic set of rules — he didn’t necessarily insist on the procedures he adapted from FBI practice, but presented them as a standard that needs to be met, and could potentially be met by other means.

I think a good-faith discussion of what Holder wants is possible. But you have to approach it wondering how it would sound if Shrub wanted it, and what we would think if we didn’t know that Times Square Nickname Pending was the culprit. These are our rights we’re talking about, after all.

Wow. Thinking sure is hord. But I’ve never understood the demonization of the government because the government is us? Innit? “We the people” and such as.

Anyhoo. I’m off to bring in the houseplants as we’re expecting a hard frost tonight. We never had this kid of weather before Obama abandoned his progressive base.

@Tommmcat Still Gets Carly Confused With Meg:

Ben Domenech at HuffPo says:

I erroneously believed that Ms. Kagan was openly gay not because of, as Stein describes it, a “whisper campaign” on the part of conservatives, but because it had been mentioned casually on multiple occasions by friends and colleagues — including students at Harvard, Hill staffers, and in the sphere of legal academia — who know Kagan personally.

yawn yawn yawn. frankly i’m surprised we have any mutation of miranda left at all…

in other news, my house is now the soup kichen for all stray kittens.
i’m up to four.

best gaffe of the week: michelle was introducing hilz and called her “president clinton” anyone catch that one? jon even missed it.

can we call it the minskoff bombing?

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