A group of 35 human rights, religious and civil liberties organizations asked Attorney General Eric Holder Monday to rethink his call for Congress to modernize the Miranda warning to deal with terrorism suspects.
In a letter to Holder, the coalition expressed concerns that “weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.”
The coalition noted that Holder has said Miranda warnings have not hampered two recent terrorism cases and that suspects continued cooperating even after being advised of their rights.
“In the nearly nine years since the attacks of 9/11, the Department of Justice has obtained convictions in more than 400 international terrorism or terrorism-related cases without weakening Miranda or risking the safety of Americans. The ‘public safety exception’ is exception enough,” the letter states.
The coalition was formed by the National Association of Criminal Defense Lawyers and includes the Alliance for Justice, the American Civil Liberties Union, People For the American Way, Human Rights First, Human Rights Watch, the Government Accountability Project, the Brennan Center for Justice and other organizations. In the letter, the groups also requested a meeting with the Attorney General or his staff to discuss their concerns.
Holder had dubbed his announcement that the Justice Department would work with Congress to “modernize” Miranda warnings as ”big news” when he made the Sunday talk show rounds last weekend.
Several Democratic leaders have expressed skepticism about the proposal, The New York Times has called the proposal “dubious” and said that Holder “owes the public a much better explanation.” Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, has also expressed doubt that Congress will change Miranda, noting that any changes would have to be made within the confines of the Supreme Court decision regarding Miranda rights.
Experts have said that the Obama administration is pioneering the use of the exception in terrorism cases.
The full text of the letter is reprinted below.
May 17, 2010
Dear Attorney General Holder,
We, the undersigned organizations, write to express our concern about your recent call to restrict the constitutional rights of individuals in the United States suspected of terrorist activity by seeking to codify or expand the “public safety exception” to Miranda v. Arizona. Current law provides ample flexibility to protect the public against imminent terrorist threats while still permitting the use of statements made by the accused in a criminal prosecution. Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.
As you know, the Supreme Court crafted the “public safety exception” to Miranda more than 25 years ago in New York v. Quarles. This exception permits law enforcement to temporarily interrogate suspected terrorists without advising them of their Miranda rights – including the right to remain silent and the right to an attorney – when “reasonably prompted by a concern for public safety.” It allows federal agents to ask the questions necessary to protect themselves and the public from imminent threats before issuing a Miranda warning. Provided the interrogation is non-coercive, any statements obtained from a suspect during this time may be admissible at trial.
Law enforcement used the Quarles “public safety exception” to question Umar Farouk Abdulmutallab, the so-called “underwear bomber,” and Faisal Shahzad, the alleged “Times Square bomber.” Both suspects reportedly provided interrogators with valuable intelligence during that time and continued to do so even after being advised of their rights. As you observed during your May 9, 2010, appearance on “Meet the Press,” “the giving of Miranda warnings has not stopped these terror suspects from talking to us. They have continued to talk even though we have given them a Miranda warning.”
In the nearly nine years since the attacks of 9/11, the Department of Justice has obtained convictions in more than 400 international terrorism or terrorism-related cases without weakening Miranda or risking the safety of Americans. The “public safety exception” is exception enough. Should the need arise to conduct an un-Mirandized interrogation unrelated to any immediate threat to public safety, law enforcement is free to do so under the Constitution. Miranda imposes no restriction on the use of unadvised statements for the purpose of identifying or stopping terrorist activity. The Fifth Amendment only requires that such statements be inadmissible for the purposes of criminal prosecution. Yet even this requirement has exceptions. Un-Mirandized statements obtained outside the public safety exception may still be used for impeachment, and physical evidence discovered as a result of such statements may also be admissible.
We understand that the Department of Justice must confront serious threats to our national security and is responsible for taking the necessary steps to protect the safety of the American people. For this reason, we understand the Department’s reliance on the public safety exception in the Abdulmutallab and Shahzad investigations. We believe, however, that current law provides all the flexibility that is necessary and constitutionally permissible. Miranda embodies a centuries-old tradition designed to prevent coerced confessions that lead to wrongful incarceration and diminish our collective security. Codifying or expanding the public safety exception would almost certainly lead to the exception being invoked far more often than is strictly necessary and would function as an end run around the constitutional requirements of Miranda. We therefore urge you to reconsider your call for Congressional action to expand the public safety exception.
We would be very interested in meeting with you or your staff to discuss this issue further.
National Association of Criminal Defense Lawyers
Alliance for Justice
American Civil Liberties Union
Appeal for Justice
Asian Law Caucus
Bill of Rights Defense Committee
Brennan Center for Justice
Coalition for Humane Immigrant Rights of Los Angeles
Council on American-Islamic Relations
Center for International Policy
Center for Media and Democracy
Defending Dissent Foundation
Freedom and Justice Foundation
Friends Committee on National Legislation
Government Accountability Project
High Road for Human Rights
Human Rights First
Human Rights Watch
Muslim Legal Fund of America
New Security Action
No More Guantánamos
Open Society Policy Center
Peace Action Montgomery
People For the American Way
Progressive Democrats of America
The Rights Working Group
U.S. Bill of Rights Foundation
Robert Jackson Steering Committee
Roderick MacArthur Justice Center
Witness Against Torture
World Organization for Human Rights USA
During an appearance on ABC’s “This Week on Sunday, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) suggested the Obama administration won’t get very far with its proposal to expand the amount of time a terrorist suspect can be interrogated without being read a Miranda warning, The Huffington Post reported.
Last Sunday, Attorney General Eric Holder said the DOJ is considering asking Congress to allow the government more flexibility in using the “public safety exception” — which allows law enforcement officials to question suspects before informing them of their so-called Miranda rights, which include the right not to talk to police. But Leahy said lawmakers are limited in their ability to change Miranda since the Supreme Court has ruled Miranda warnings to be a constitutional right.
“I sat down and talked with the president about this. The question is not so much whether I’m concerned about the civil rights one way or another, it is what a court will agree to. After all, it was the Supreme Court that set down the rules of Miranda. Whatever changes might be made, have to made within the confines of what the United States Supreme Court has already said,” Leahy said. “I think the president and Eric Holder understand that.”
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) told reporters Thursday that he still hopes to confirm someone to lead the Justice Department’s Office of Legal Counsel. His comments came after Dawn Johnsen withdrew her nomination to the post last week after it had been stalled in the Senate for more than a year.
Leahy said he was surprised by Johnsen’s withdrawal, which came after more than a year of criticism from Republicans because of her pro-abortion rights stance and her opposition to Bush administration national security policies.
He said the Senate should have held a floor vote on her nomination. And he said the Senate should confirm President Barack Obama’s next nominee for the elite office that assesses the constitutionality and legality of government actions.
“We darn well better [confirm someone] because it is one of the most important positions in government,” Leahy said.
The Office of Legal Counsel has not had a Senate-confirmed head since Jack Goldsmith left it in 2004. He was replaced with an acting head until President George W. Bush nominated Steven G. Bradbury to the post in June 2005. The Senate Judiciary Committee approved his nomination, but the full Senate never brought up his nomination for a floor vote. Bradbury continued to serve as acting head until the end of the Bush administration. David J. Barron is currently the acting head of the office.
Johnsen was initially nominated to head the office on Feb. 11, 2009. The Senate Judiciary Committee endorsed her on an 11-7 vote on March, 19, 2009, with then-Republican Sen. Arlen Specter of Pennsylvania voting “pass.” Her nomination languished in the Senate for more than nine months before it was returned to the White House in December. Obama re-nominated her in January of 2010 and the Judiciary panel once again sent the nomination to the Senate floor by a 12-7 party-line tally on March 4. There were no overt moves to bring the nomination to a vote.
“People have to put their lives on hold during this nomination process,” Leahy said. “And when the nomination process takes forever, at some point they will say it’s not worth it.”
The OLC came under fire during the Bush administration for authorizing the use of harsh interrogation techniques against terrorism suspects.
A DOJ Office of Professional Responsibility report released in February cleared former OLC officials John Yoo and Jay Bybee of any misconduct in authoring the memos on the techniques. DOJ veteran David Margolis said in the report that they only showed “poor judgment.”
“I would like to bring somebody in there who can restore the credibility of [OLC],” Leahy said.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) will not attend his panel’s oversight hearing with Attorney General Eric Holder on Wednesday morning.
Instead, Leahy will attend a funeral in Vermont Wednesday for his close friend, Stevenson H. Waltien Jr., who died of an apparent heart attack Saturday. Waltien was serving as Leahy’s re-election campaign treasurer at the time of his death, The Burlington Free Press reported.
“I’m coming up for the funeral,” Leahy told the newspaper. “I want to be there.”
Sen. Herb Kohl (D-Wis.) will chair the hearing in Leahy’s place, according to The Blog of Legal Times.
The hearing was initially scheduled for March, but was postponed so senators could attend the White House signing ceremony for the health care legislation.
Panel members are expected to question Holder about the Obama administration’s handling of alleged Sept. 11 mastermind Khalid Sheikh Mohammed, who was slated for a civilian trial but now may be returned to the military commission system.
Republicans are also anticipated to ask about Holder’s 2004 amicus brief in the Jose Padilla case, which argued that the president does not have the authority to imprison a U.S. citizen indefinitely without access to counsel or courts.
The brief, which was signed by Holder, former Attorney General Janet Reno and two other top-ranking Clinton administration officials, said that the civilian justice system may pose obstacles to detention or intelligence-gathering, but that such risks represent “an inherent consequence of the limitation of executive power.”
The top Republican on the Senate Judiciary Committee criticized the decision to delay a scheduled oversight hearing with Attorney General Eric Holder Tuesday, taking the opportunity to flesh out his disagreements with the way the Justice Department has handled terrorism cases under Holder’s leadership.
“The last time Attorney General Holder testified before the Senate was November 18th of last year. Then in late January, following revelations that the Christmas Bomber had been hastily Mirandized — without consulting the relevant intelligence agencies — Republicans called for an immediate hearing with the Attorney General,” Sen. Jeff Sessions (R-Ala.) said in a statement. “Unfortunately, that hearing was never held. We were told instead that we would have an opportunity to question Attorney General Holder at a planned oversight hearing in March.”
“Now that won’t happen either. But while this hearing has been delayed, the Attorney General cannot delay action to repair his broken policies,” Sessions added.
DOJ aides were intently preparing Holder for the hearing on Monday evening when the Senate Judiciary Committee announced the oversight hearing would be postponed to allow senators to attend the White House signing ceremony of the newly passed health care law. Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, attended the signing ceremony .
Sessions’ full news release is below.
WASHINGTON—U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, made the following comments today after it was announced that Attorney General Eric Holder’s appearance at a Department of Justice oversight hearing, originally scheduled for today, would be postponed until April:
“The last time Attorney General Holder testified before the Senate was November 18th of last year. Then in late January, following revelations that the Christmas Bomber had been hastily Mirandized—without consulting the relevant intelligence agencies—Republicans called for an immediate hearing with the Attorney General. Unfortunately, that hearing was never held. We were told instead that we would have an opportunity to question Attorney General Holder at a planned oversight hearing in March.
“Now that won’t happen either. But while this hearing has been delayed, the Attorney General cannot delay action to repair his broken policies.
“The American people need to know what road Attorney General Holder will take: Will he continue to needlessly reject military commissions and to treat terrorists like common criminals? Or will he utilize the lawful military justice system as a crucial resource in the war on terror?
“Just last week, Attorney General Holder suggested that Osama Bin Laden might receive the same legal treatment as Charles Manson. This statement failed to recognize the extraordinary legal and security differences between a domestic killer and the foreign leader of an international terrorist network with which we are at war.
“Does he really believe that if we capture Bin Laden — or any of his top deputies—the first question we should ask them is if they want a lawyer?
“And just last night we finally received the Department of Justice’s response to the written questions submitted after the Attorney General’s November testimony. In those responses, the Department of Justice concedes that military commissions have better safeguards than criminal trials for protecting classified information — contradicting the Attorney General’s own testimony.
“It’s time for the Attorney General and the Obama Administration to utilize the nearly 10 years of effort that went into establishing military commissions after 9/11. Congress passed legislation and we even built an ideal site for these trials with a multi-million dollar courthouse at Guantánamo Bay.
“Military justice is consistent with our history, our laws, our security, and our values. Failing to utilize it jeopardizes needed intelligence and is a dangerous deviation from the longstanding principles of war.”
The Justice Department on Monday formally responded to questions posed to Attorney General Eric Holder following a November 18 Senate Judiciary Committee hearing.
Assistant Attorney General for the Office of Legislative Affairs Ron Weich sent answers to questions to Judiciary Chairman Sen. Patrick Leahy (D-Vt.). Members often submit written questions to witnesses after a hearing to follow-up on topics.
The 120-page response, which addresses questions from 10 senators on a range of issues, is embedded below.
The Senate passed legislation by voice vote Wednesday night to address the sentencing disparity between crack and powder cocaine.
The Fair Sentencing Act would establish an 18-to-1 sentencing ratio for crack and powder cocaine offenses. The current decades-old sentencing law sets a 100-to-1 ratio, requiring the same five-year mandatory minimum sentence for the possession of five grams of crack cocaine as it does for the possession of 500 grams of powder cocaine.
“After more than 20 years, the Senate has finally acted on legislation to correct the crack-powder disparity and the harm to public confidence in our justice system it created,” Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, said in a news release. “Although this bill is not perfect and it is not the bill we introduced in order to correct these inequalities, I believe the Fair Sentencing Act moves us one step closer to reaching the important goal of equal justice for all.”
According to the release, the bill also would refocus federal resources on large-scale, violent drug traffickers and increase the penalties for the worst drug offenders.
The measure, introduced last year by Assistant Majority Leader Richard Durbin (D-Ill.), unanimously was approved the Senate Judiciary Committee on March 11.
As originally introduced, the bill would have required the same sentencing guidelines for powder cocaine and crack offenses, establishing a 1-to-1 ratio. Democrats have argued the law tends to disproportionately target blacks because crack is typically used in poorer urban communities. After negotiations with Republicans, Democrats on the committee eventually agreed to the 18-to-1 ratio.
“I know this agreement is not everything we would like. Frankly, it is not everything that I would like either,” Durbin said at the committee markup. “But this is a historic day. The Senate Judiciary Committee has never reported a bill to reduce this crack-powder disparity.”
Sen. Jeff Sessions of (R-Ala.), the panel’s ranking minority member, said that the bill reported out of committee strikes the right balance in addressing concerns that the current sentencing guidelines unjustly targets blacks and the needs of law enforcement officials.
“Despite my belief that parity was the better policy, I have joined with Senator Durbin and support the progress represented by his compromise with Senator Sessions,” Leahy said in the release. “I urge the House to act quickly so that the President can sign this historic legislation into law.
The Justice Department has expressed support efforts for eliminating the differences between crack and powder cocaine sentencing. Assistant Attorney General Lanny Breuer said at a House hearing in May that the current sentencing policies are “hard to justify.”
On the heels of a House vote last week, Senate Democrats sent a letter Wednesday to Majority Leader Harry Reid (D-Nev.) urging him to schedule a vote on a Senate bill that would subject health insurers to more federal antitrust scrutiny.
The House passed a bill last Wednesday, 406-19, that would partially repeal a 1945 law that exempts insurance companies from some federal antitrust regulation.
House leaders took up the narrower bill to target the antitrust exemption after a broader health care overhaul stalled.
The letter to Reid was signed Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, which has jurisdiction over antitrust issues along with 20 Democrats and one Independent.
“This is an important step toward bringing competition to the health insurance market, and would ensure that anticompetitive abuses such as price fixing and monopolization are policed in the health insurance industry,” the letter reads.
“This reform is long overdue, and we are pleased that the House voted in such an overwhelming manner to bring antitrust scrutiny to the health insurance industry.”
Leahy has led efforts in the Senate to repeal the exemption.
Despite Democrats championing the issue, the repeal would have little affect on health insurance companies, according to The New York Times. In an article Wednesday, Paul Ginsburg, the president of the nonpartisan Center for Studying Health System Change, told The Times:
The effect would be almost trivial. Insurance companies have long been subject to most federal antitrust laws. They can’t merge without the approval of the Department of Justice, for example. The only thing that might occur is that some of the data that they share — malpractice insurers share data on claims trends, for example — might not be permitted.
Although Sen. Patrick Leahy urged his colleagues Tuesday to vote on 13 pending judicial nominations, including that of 2nd Circuit Court of Appeals nominee Denny Chin, not everyone is as eager to see New York judge move to the appellate court right away.
Chin, who was nominated last October and approved by the Senate Judiciary Committee in December, is overseeing Google’s proposed settlement to digitize millions of books. Google entered into a class-action settlement with a number of authors and publishers in 2008.
After a marathon hearing on the settlement last month during which competitors, public interest groups, other authors and the Justice Department aired their grievances, Chin is faced with the task of issuing a ruling in the long-running case.
The settlement stems from a pair of 2005 lawsuits against the Internet search giant. About 500 objections to the settlement have been filed — largely from critics who argue it violates copyright law and gives Google an unfair advantage in the e-book market.
Observers expect Chin to suggest changes the parties might make in order to get the settlement approved, as courts do not often reject negotiated settlements between private parties outright.
But if such a ruling further prolongs the process, and Chin is confirmed to the 2nd Circuit, it’s unclear if the matter might be moved to a different judge.
Chin was included in Sen. Leahy’s list of 14 nominations that were still waiting for a floor vote. Eight of them, including Chin, are not considered controversial.
Escalating a war of words over President Obama’s judicial nominations, Senate Judiciary Chairman Patrick Leahy (D-Vt.) blasted Senate Republicans Tuesday for hanging judicial nominees out to dry and dredged up some old dirty laundry from the Clinton administration.
“Senate Republicans have delayed and obstructed nominees chosen after consultation with Republican home state senators,” Leahy said in a floor speech. “The obstruction and delay is part of a partisan pattern. Even when they cannot say ‘no,’ Republicans nonetheless demand that the Senate go slow.”
To date, the Senate Judiciary Committee has approved 29 of Obama’s judicial picks. Thirteen of those are currently pending before the Senate.
According to Leahy, Republican senators have refused to assent to time agreements, which would limit the amount of debate on a nomination. Without a time agreement, the Senate must vote to invoke cloture, a procedure that shuts off all debate and requires 60 votes, in order to move to legislation or a nomination. Even with cloture, the process is time-consuming, and can eat up the better part of a week, if Republicans insist on using all 30 hours of post-cloture debate time.
Republicans maintain they are not blocking nominations. In a January floor speech on the nomination of 11th Circuit Court of Appeals Judge Beverly Martin, the Judiciary panel’s ranking Republican, Jeff Sessions of Alabama, suggested that Leahy had purposefully delayed a vote on the non-controversial nominee so that Republicans would get the blame for slowing down the confirmation process.
“Republicans have been and are ready and willing to proceed to a roll call vote on her nomination for months but, for whatever reason, our Democratic colleagues, the leadership, would not take yes for an answer,” Sessions said.
“Some of my Democratic colleagues have said they want to confirm judicial nominees at the same pace the Democratic-controlled Senate confirmed President Bush’s nominees,” he continued. “I think my colleagues should be careful what they wish for, because President Obama’s nominees have fared far better than President Bush’s.”
On Tuesday, Leahy rejected that insinuation and noted that during the Clinton administration, Republicans used a little-known committee procedure, blue slips, to secretly kill dozens of President Bill Clinton’s judicial nominees.
Blue Slips refer to a Judiciary Committee policy, whereby nominees for appellate and district courts do not advance without the approval of both home state senators. The practice is named for the color of the paper that senators use to signal their approval or disapproval of nominees. As a result, a nominee’s home-state senator can slow down or effectively kill a nomination simply by not returning the form.
When Leahy became chairman of the committee in 2001, he changed the policy on blue slips to make them public.
“Republicans’ suggestion that Democrats are delaying in their consent to advance these nominations is also more than ironic since they have never acknowledged, nor accepted, responsibility for pocket filibustering more than 60 of President Clinton’s judicial nominees,” Leahy said Tuesday. “When I became chairman of the Judiciary Committee, I made Senators’ consent forms, or blue slips, public for the first time. I am still waiting for Republicans to agree to make public their blue slips from 1993 through 2000.”