So on Thursday the WSJ reported that the Obama administration has changed the rules of investigating terror suspects, to permit interrogation without Miranda warnings in certain circumstances:
A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.
We made a few notes, hoping to get a minute to blog on the issue. It just struck us as a stupid and unnecessary thing to do, if prevention of terrorist acts is the goal. Miranda is just a protection affecting evidence that can be used at the trial of the person being interrogated. That has to do with evidence of past crimes; it’s irrelevant to the prevention of future acts. And if the goal is to gather evidence for a criminal trial, then it’s just unconstitutional. It’s stupid no matter which way you look at it. But our current never-ending trial is demanding pretty much every waking moment, and nothing got written.
Then yesterday the NYT published the text of the October 2010 FBI memo. The relevant paragraph provides that:
There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.  In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.
At the words “prompt presentment,” we (figuratively) slapped our forehead. It all came back to us. In May 2010, when the Obama administration first floated the idea, (more…)