Holder: Let's "Modify" Miranda, Weaken It

I awoke this morning to Eric Holder's concession on ABC about "modifying" Miranda in terrorism cases. I am really unhappy that the Administration is willing to give ground on this Constitutional principle, especially when in the most recent terror case the Pathfinder Bomber, who was twice given his Miranda warnings, is being such a conversationalist with the authorities.

An attack on Miranda, a precedent that has weathered 42 turbulent years, even a concession as mild as Holder made today, is usually an offering to certain kinds of voters, voters who are afraid, who are "law and order," who are ready to sacrifice the Constitution for "safety." So I see today's remarks as a dog whistle. But I don't know why Holder is calling these particular stray dogs.

Apparently, the Attorney General had this to say:

"The [Miranda] system we have in place has proven to be effective," Holder told host Jake Tapper. "I think we also want to look and determine whether we have the necessary flexibility -- whether we have a system that deals with situations that agents now confront. ... We're now dealing with international terrorism. ... I think we have to give serious consideration to at least modifying that public-safety exception [to the Miranda protections]. And that's one of the things that I think we're going to be reaching out to Congress, to come up with a proposal that is both constitutional, but that is also relevant to our times and the threats that we now face."

So, in response to Republican screams that the Pathfinder Bomber, who parenthetically is talking and confessing his brains out as I write, shouldn't have been given Miranda warnings, the AG is agreeing. This is tough to understand. Instead of pointing out that Miranda didn't hurt anything in this case and in many others, and in fact, there is no case where giving Miranda seems to have hurt a terrorism investigation, the Attorney General is offering some red meat to the howling canines.

If you think about Miranda and terrorism, there are some obvious points that seem to have been missed. First, Miranda has been on television around the world numerous times daily since 1968, when the decision was announced. You can probably recite most of the warning from memory. We all know that it applies when someone in custody is being questioned by cops. Do we really think that after all this time terrorists, whether or not they are read the Miranda warnings from a crumpled, little yellow card, don't know they have a right to remain silent? That they've not been told that there is Miranda if you get arrested in the US? So that reading them their rights will be a revelation to them and spur them to sudden silence?

And what if you don't give warnings, what happens then? Then the police aren't allowed to use the confession in their direct case at the trial of the person who didn't get warnings. It doesn't stop them from using the evidence you give against somebody else. It doesn't stop them from trying the person they are questioning. It just stops the use of the confession. That's suppressed. Just that. And everything that they derive from that about the accused. Does that ruin the case? Maybe. Maybe not. But giving Miranda is not equivalent to finding the accused not guilty. Far from it.

Even more preposterous in today's concession is the lack of history brought to the table.

In 1968, two years after the Miranda decision, Congress passed a law that purported to overrule it. This statute, 18 U.S.C. § 3501, directed federal trial judges to admit statements of criminal defendants if they were made voluntarily, without regard to whether he had received the Miranda warnings. Under § 3501, voluntariness depended on such things as (1) the time between arrest and arraignment, (2) whether the defendant knew the crime for which he had been arrested, (3) whether he had been told that he did not have to talk to the police and that any statement could be used against him, (4) whether the defendant knew prior to questioning that he had the right to the assistance of counsel, and (5) whether he actually had the assistance of counsel during questioning. But the "presence or absence of any of" these factors "need not be conclusive on the issue of voluntariness of the confession." Because § 3501 was an act of Congress, it applied only to federal criminal proceedings and criminal proceedings in the District of Columbia.

source

And in Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court held the requirement that the Miranda warning be read to federal criminal suspects, and struck down this federal statute that purported to overrule Miranda v. Arizona in a 7-2 decision written by Rehnquist with Scalia and Thomas dissenting. So, to make a long story short, a decade ago the question of whether Congress could modify or overrule Miranda was already dead letter.

Sure, that was before 9/11. Sure, the Court has changed. Sure, the original majority in Dickerson has left the Court. But there is no case in the pipeline that even tangentially approaches the issue. Because there is no such legislation. Holder's remarks aren't about a repeal or modification of Miranda by the Court. They're directed toward an eventual statute that will seek to modify Miranda.

Holder's remarks are a sop for the whining republicans. And their perceived constituencies. These remarks are directed exclusively at the extremely fearful, those who are ready to give up Constitutional rights for their perception of their safety, who might think at some future time that the administration is "soft on terrorism." That's just pitiful.

Quietly Sanctioning Prison Beatings

Clarence Thomas may not have spoken in oral arguments at the Supreme Court in more than four years, but this morning Linda Greenhouse writes in the New York Times about Thomas's consistent, twice repeated argument that the Eighth Amendment does not proscribe "harsh treatment", including beatings of prisoners. You read that correctly. Prison beatings, according to Justice Thomas, aren't forbidden by the Eighth Amendment. And presumably, neither are stress positions, sleep deprivation and other forms of torture. And as if that position were not repulsive enough, Thomas apparently wants it to be adopted by the new majority of the Supreme Court.

Greenhouse points out that during his confirmation hearing, Thomas expressed his empathy for prisoners:

During his Senate confirmation hearing, he had claimed a certain empathy for prisoners. He described looking out the window of his chambers at the Court of Appeals and watching prisoners being loaded into buses to be taken back to their cells. “I say to myself every day, but for the grace of God there go I,” he told the members of the Senate Judiciary Committee.

Those sentiments, however, must have been added solely to manipulate the listeners. They must have been just another sleight of hand attempt to cast himself as a victim. Why do I say that? Because in 1992, four months after he assumed his seat on the Court, Thomas dissented in Hudson v. McMillan. Keith Hudson, if he believed what Thomas said during the confirmation hearings, must have been happy to have him on the Court to hear his case. Hudson "had been kicked and punched by three guards while he was handcuffed and shackled. He suffered bruises, swelling and loosened teeth, injuries that a federal appeals court, in dismissing his lawsuit, deemed so minor as to be beneath the notice of the Eighth Amendment." The Supreme Court reversed and reinstated the suit. In behalf of a 7-judge majority Judge Sandra Day O'Connor wrote, “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.” Put another way, the Eighth Amendment forbids malicious and sadistic beatings of prisoners.

And what did Thomas (and Scalia) find objectionable with this ruling? Greenhouse puts it this way:

The new justice said that the Constitution’s framers “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.” The Eighth Amendment dealt with only the actual sentence, he maintained, and not with conditions inside a prison or deprivations that were not a formal aspect of the sentence. He said the Supreme Court had taken a wrong turn in the 1970’s when it adopted a more expansive view, and he added, “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.”

Isn't that wonderful? Guards have always beaten prisoners. The Constitution, and particularly the Eighth Amendment proscription against cruel and unusual punishments, according to Thomas and Scalia, doesn't apply in any fashion to these myriad beatings. The Constitution is silent about post sentence events, including beatings and torture and excessive solitary confinement and lack of medical care and brutality in all forms during a sentence. So prisoners have no recourse in federal court, when they are beaten or otherwise brutalized. So much for empathy. Long live hypocrisy.

Unfortunately, that's not the end of the story. Eighteen years later, in a 9-0 decision, the Supreme Court relying on stare decisis followed Hudson in Wilkins v. Gaddy. Jamey L. Wilkins claimed that a guard had answered his request for a grievance form by slamming him onto the concrete floor and then punching, kicking and choking him until another guard pulled the attacker off. Thomas and Scalia concurred in the result in a separate opinion, in which Thomas sought to solicit a case in which he and others in the new Supreme Court majority might overrule Hudson and advance the argument that the Eighth Amendment permits guards to beat prisoners who ask for grievance forms. Greenhouse writes,

Justice Thomas, joined by Justice Scalia, concurred only in the judgment, not the court’s opinion. “I continue to believe that Hudson was wrongly decided,” he said. But noting that “no party to this case asks us to overrule Hudson,” he said that he was going along with the majority because as long as the precedent was on the books, it clearly required the result the Supreme Court had reached.

Justices do not casually note that “no party has asked us to overrule” a particular precedent. It is an invitation to send the court just such an invitation, and it is a technique that Justice Thomas has used before to good effect. Concurring in a 1997 decision, Printz v. United States, which struck down a federal background check for gun purchasers on states’-rights grounds, Justice Thomas observed that no one has asked the court to look at the case through the lens of the Second Amendment’s right to bear arms. “Perhaps at some future date” the court would have the opportunity to consider the scope of the Second Amendment, he added, helping to initiate a project that came to fruition in the Heller decision in 2008.

I am horrified, but not surprised by Thomas's views. And to the rest of the world, these views make the United States appear to be a band of brutal barbarians. But, of course, there is really nothing that can be done about this. Thomas and Scalia were appointed for life. One has to wonder aloud how judges with such aberrant and bizarre views of the Constitution have been confirmed.

Judicial Grandstanding

By now, you've read about the arrest of Stephen P. Morgan for the murder of Johann Justin-Jinich, a Wesleyan University junior. Morgan, it seems, turned himself in on Thursday evening after eluding the police for a day. His bail was originally set at the princely sum of $10 Million. A huge, unmakeable bail. Put another way, he wasn't remanded without any bail (which would undoubtedly have been appropriate in this case). Instead he was given a bail, but the amount was set so high that nobody without huge assets and lots of ready cash-- Morgan apparently doesn't fall in that category-- could ever dream of making it. In other words, he's not getting bailed out. Ever. And that was undoubtedly intended: Morgan had fled the scene, didn't have ties to Connecticut, tried to disguise himself when he allegedly committed the crime, escaped detection at the crime scene, and he had every reason to flee prosecution. This is how these kinds of serious cases usually play out: the accused is detained in jail until the trial. You would have thought that the $10 Million bail ended the discussion. Wrong.

Today's NY Times reports:

A judge on Friday raised the bail for the man accused of fatally shooting a Wesleyan University junior in a bookstore near the campus to $15 million from $10 million, citing the seriousness of the crime and the threat posed to the community he had paralyzed for more than 24 hours until he surrendered.

The suspect, Stephan P. Morgan, 29, wearing a dark violet jumpsuit and with his hands cuffed behind his back, stood expressionless during his arraignment on first-degree murder charges before Superior Court Judge Mary-Margaret Burgdorff....snip

On Friday, Judge Burgdorff said she was raising the bail because, beyond his threat to the community, Mr. Morgan does not live in Connecticut and because he was wearing a disguise when he allegedly committed the crime. His next court appearance will be May 19.

This is obvious judicial politicking and grandstanding. The United States Constitution provides in the Eighth Amendment that "[e]xcesive bail shall not be required." Bail, the case law says uniformly, is excessive when a court sets it higher than reasonably necessary to ensure a defendant's appearance at trial." So the question naturally arises about the increase in Morgan's bail. There was no indication that he or anyone else on his behalf could come near to posting $10 Million in cash or bail bonds. Who could actually post that amount? Well, Bernie Madoff at one point posted $10 Million. Nobody is suggesting that Morgan is in Madoff's financial league. The $10 million was assurance that he'd be detained until trial.

So how does one explain at 50% increase in the bail, from $10 Million to $15 Million? You can't. I know he's alleged to be a heinous criminal, an anti semite, and a huge danger to everyone in Connecticut whom he paralyzed with fear, but Judge Burgdorff's ruling today is abusive. It's an example of unnecessary, judicial grandstanding. It's based on her view that Morgan is a very, very bad man, indeed. He's so bad that $10 Million bail isn't enough. He's so bad that $15 Million is better. Put another way, while he's down it's expedient and easy to pile on.

Today's bail decision has nothing to do at all with applying the law. It has everything to do with politics. And it's an abuse that should be vacated.

On National Numbness

This morning's Docudharma Times led off with a New York Times story about the interrogation of Khalid Shaikh Mohammed. It's worth reading all the way through. I found it extremely disturbing, and I haven't been able to get it out of my mind. Hence, this essay is an expansion of this comment.

As Viet71 appropriately noted in the comments, the Times story

tries to put a "human face" on the CIA torture of prisoners by focusing on a CIA interrogator who doesn't seem to be such a bad guy at all.

The writer displays absolutely no disgust for the topic about which he writes and paints a fairly calm picture of the CIA renditions and harsh methods.

There is no mention in the article of high-level administration approval of torture.

All in all, I believe this article is aimed at causing people to believe that what the CIA did in these renditions just wasn't that bad.

In other words, the story appears to be propaganda for the acceptance of CIA behavior in extraordinary renditions illegal extraditions and harsh interrogation techniques torture.

I agree with the comment. How, I wonder, can the arrest, detention in a secret prison in Poland, illegal extradition, and yes, torture, of Khalid Shaikh Mohammad not provoke outrage? How, I wonder, did we end up with a story focusing on the "good cop" in the interrogation, and virtually ignoring the "bad cops", the ones with whom the "good cop" was acting in concert in the interrogation, the "knuckledraggers" who admittedly, repeatedly abused the prisoner? Do we just overlook the war crimes and human rights violations? Are we numb?

Khalid Shaikh Mohammad, by all accounts might be a very, very bad man. But hasn't the law in the US recognized, especially in death penalty cases like this one, that death is different and that extensive procedural safeguards are appropriate especially when dealing with the very worst of bad men? Put another way, isn't it in dealing with people like Khalid Shaikh Mohammad that the most safeguards are required if we are to make a fair, unbiased, reliable appraisal of guilt? And isn't this story glossing over the "shortcuts" and "deviations" that were taken and continue in this case? Are we oblivious to the lack of procedure despite 400 years of common law? Are we numb?

Buried deep in the Times story is this:

Mr. Mohammed met his captors at first with cocky defiance, telling one veteran C.I.A. officer, a former Pakistan station chief, that he would talk only when he got to New York and was assigned a lawyer - the experience of his nephew and partner in terrorism, Ramzi Yousef, after Mr. Yousef's arrest in 1995.

But the rules had changed, and the tough treatment began shortly after Mr. Mohammed was delivered to Poland. By several accounts, he proved especially resistant, chanting from the Koran, doling out innocuous information or offering obvious fabrications. The Times reported last year that the intensity of his treatment - various harsh techniques, including waterboarding, used about 100 times over a period of two weeks - prompted worries that officers might have crossed the boundary into illegal torture.

So. "Cocky defiance" is the same thing as attempting to assert the right to counsel and the right to remain silent. The Constitutional rights enumerated in Miranda v. Arizona include, "You have the right to remain silent," and "You have a right to a lawyer." Evidently, Mr. Mohammad tried to assert both rights. But, unbeknownst to him, refusing to provide counsel or ceasing the interrogation until one was present was OK because "the rules had changed" in his case. Mohammad probably didn't get the memo about that. Nor to be frank, did I. So instead of not interrogating until the prisoner had counsel, the US used "various harsh techniques including waterboarding" about 100 times within two weeks. And the article opines that this might be torture.

Might be torture? Let's to the arithmetic. 100 techniques divided by 14 days is 7 techniques per day. Are we anesthetized? Are we numb?

And then there's something else. When Mohammad said he wanted counsel and didn't want to talk, did the interrogators have to go up the chain of command to decide what to do? Or did they already know to deny the request because it had been planned for? Where are the memos that explain all of this, the ones that explain that "enemy combatants" have no rights to silence or to lawyers? They're classified and we cannot see them. But we don't make a big deal about that. Are we numb?

Forgive me if I sound alarmist, but uncritical acceptance of stories like this one, and failure to follow up on the questions they raise, is a step toward a United States that believes that torture is all right in some cases, that warrantless wiretapping is all right in some cases, that illegal extraditions are all right in some cases, the secret prisons are all right in some cases, that detention without access to the courts is all right in some cases, in sum, that doing monstrous and unprecedented things is all right in some cases because it might make the US safer and the US is afraid not to.

There's an obvious problem with all of this. A US that guts its principles, rips up its Constitution, and justifies these terrible policies and even more won't be the US you used to know. It will have been transformed into something else, something totalitarian and oppressive.