In the name of fighting Terrorism, the DOJ severely dilutes decades-old protections
Topics: Politics News
One of the central pledges of Barack Obama’s campaign was that — as he put it early in his presidency — the Bush administration had gone wildly wrong because it “established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable — a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass.” Instead, he implored, we must fight Terrorism only “with an abiding confidence in the rule of law and due process, in checks and balances and accountability.” Thus, he thunderously vowed, “We must never — ever — turn our back on its enduring principles for expedience sake.”
The number of instances in which Obama has violently breached his own alleged principles when it comes to the War on Terror and the rule of law are too numerous to chronicle in one place. Suffice to say, it is no longer provocative or controversial when someone like Yale Law Professor Jack Balkin writes, as he did the other day, that Obama “has more or less systematically adopted policies consistent with the second term of the George W. Bush Administration.” No rational person can argue that or even tries to any longer. It’s just a banal expression of indisputable fact.
Today, the Obama DOJ unveiled the latest — and one of the most significant — examples of its eagerness to assault the very legal values Obama vowed to protect. The Wall Street Journal reports that “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.” The only previous exception to the 45-year-old Miranda requirement that someone in custody be apprised of their rights occurred in 1984, when the Rehnquist-led right-wing faction of the Supreme Court allowed delay “only in cases of an imminent safety threat,” but these new rules promulgated by the Obama DOJ “give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.”
For that reason, the WSJ is surely correct when it calls these new guidelines “one of the Obama administration’s most significant revisions to rules governing the investigation of terror suspects in the U.S.” Note that, in 7 years of prosecuting the War on Terror after 9/11, the Bush administration never tried to dilute Miranda guidelines (though doing so for them was irrelevant because they simply imprisoned even American citizens (such as Jose Padilla) without any charges or due process of any kind).
Ironically, it was the administration — and its followers — that defended the sanctity of Miranda back in late 2009, when the Cheney/Kristol/Limbaugh/Palin Right attacked Obama for Mirandizing the “underwear bomber” as soon as he was taken into custody. Back then, the White House and its loyalists stridently argued that Miranda does not interfere with effective interrogations and that, in any event, it is a pillar of our justice system that should not be eroded. We’ll undoubtedly be hearing from the same precincts now — from the very same people — that diluting Miranda is necessary to Keep Us Safe; that it’s fully within a President’s right to change Miranda guidelines without Congress (just like he can start wars on his own); and that it’s merely a tiny little change that pales in comparison to the Important Issues of the Day. For anyone who defends Obama’s new decision here, shouldn’t you also admit that Rush Limbaugh and Bill Kristol were right in criticizing Obama back then and demanding dilution of Miranda for Terrorism suspects?
The WSJ report says that the change was motivated not only by controversy over Mirandizing the Underwear Bomber, but also Times Square attempted bomber Faisal Shazad. Shazad, though, is an American citizen. Although the DOJ memo is not public — the WSJ saw a copy of it — this presumably means that the dilution of Miranda applies to non-citizens and U.S. citizens alike, including those captured on American soil. In other words, with the sweep of a unilateral pen, Miranda simply no longer compels the government to read you your rights if you are accused of involvement in Terrorism and FBI agents unilaterally decide that it shouldn’t.
Two weeks ago, when Obama issued his Executive Order providing for a system of indefinite detention at Guantanamo, GOP Rep. Peter King lavished him with praise. King has done the same thing with this decision, as the anti-Muslim, Terrorism-obsessed Congressman has long been one of the leading advocates for these Miranda changes. As usual in the national security and Terrorism areas, Obama’s most vocal cheerleaders are found on the Bush-following Right.
Although The Most Transparent Administration Ever continues to conceal this Miranda memo, it appears that some parts of Miranda-related rights remain, including the right to appear before a magistrate within 24 hours and a ban on the admissibility of statements made prior to the reading of rights. But the crux of Miranda is the right to be advised of one’s Constitutional rights upon being taken into custody — that’s why these guidelines for implementing the Supreme Court decision have been in place for so long — and it is this right which the Obama DOJ has simply waved away, despite this rather important fact:
The administration suggested legislation last year to alter Miranda but was rebuffed by Congress, administration officials said. Its proposals faltered due to objections from Democrats, who had no appetite for tinkering with Supreme Court precedent, and Republicans who aired civil-liberties concerns or rejected civilian custody for terror suspects.
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.
* * * * *
Speaking of abandoning one’s campaign pledges, PolitiFact yesterday compared (a) Obama’s 2007 statement that Presidents have no power to start wars without Congressional approval except to stop an attack or imminent on America with (b) his current conduct in Libya and positions to justify it, and found what it calls a “FULL FLIP”. But the good thing about being Barack Obama is that you’re justified in what you do even when you first do X and then do Not X.
Thus, when you argue that wars need Congressional approval, you’re standing up for the Constitution; when you start a war without Congressional approval, you’re a humanitarian. When you announce you will release torture photos in the government’s possession, you’re a stalwart defender of transparency; when you change your mind two weeks later and announce you’ll conceal those photos, you’re standing up for The Troops. When you give Miranda warnings to Terrorism suspects, you’re honoring the Rule of Law and protecting American values; when you turn around and deny those very same rights, you’re showing your devotion to Keeping us Safe.
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Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of three New York Times Bestselling books: two on the Bush administration's executive power and foreign policy abuses, and his latest book, With Liberty and Justice for Some, an indictment of America's
two-tiered system of justice. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.