Legal Commentary

DOJ/FBI Curtails Miranda Rights For Terror Suspects

By Jeralyn

The Wall St. Journal has obtained a copy of a new Department of Justice Memorandum authorizing a delay in providing Miranda rights to terror suspects in certain circumstances.

The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

Isn't this a risky move by DOJ? What authority does it have to change Miranda rights? Shouldn't this be up to Congress or the Supreme Court? [More..]

"I don't think the administration can accomplish what I think needs to be done by policy guidance alone," said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. "It may not withstand the scrutiny of the courts in the absence of legislation."

The New York Times also has a copy of the three page memorandum, which it says was issued in October, 2010 by the FBI.

Matthew Miller, a Justice Department spokesman, said that the memo could not alter a constitutional right. He portrayed it as clarifying existing flexibility in the rule — especially when investigators are willing to risk sacrificing the ability to use a suspect’s statements in trial.

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?

Full post as published by TalkLeft on March 24, 2011 (boomark / email).