Why is Obama's DOJ constricting civil liberties?

US Supreme Court weakens “Miranda” rights of criminal suspects

After Van Chester Thompkins was arrested in 2000 for a drive-by shooting in Southfield, Michigan, two detectives sat him in a small chair in an 8-by-10 room. They recited the familiar Miranda admonitions—”You have the right to remain silent, you have the right to an attorney” and so forth—and asked Thompkins to sign a form confirming he understood them. Thompkins refused to sign and sat virtually mute as the detectives badgered him about his alleged involvement in the crime.

Two hours and 45 minutes later, a detective asked, “Do you believe in God?” After Thompkins replied “Yes,” the detective asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins again answered “Yes.”

The Court of Appeals for the Sixth Circuit, which covers Michigan and several other northeastern states, reversed Thompkins’s murder conviction on the basis that Miranda barred the use of this incriminating statement at trial. The Supreme Court on Tuesday reversed the appeals court, reinstating the conviction.

The controlling precedent is clear. Miranda directs: “If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self‑incrimination and his right to retained or appointed counsel…. A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”

The Miami Herald's Carol Rosenberg reports that, this week, yet another federal judge has ordered the Obama administration to release yet another Guantanamo detainee on the ground that there is no persuasive evidence to justify his detention. The latest detainee to win his habeas hearing, Mohammed Hassen, is a 27-year old Yemeni imprisoned by the U.S. without charges for 8 years, since he was 19 years old. He has "long claimed he was captured in Pakistan studying the Quran and had no ties to al Qaida," and that "he had been unjustly rounded up in a March 2002 dragnet by Pakistani security forces in the city of Faisalabad that targeted Arabs." Hassen is now the third consecutive detainee ordered freed who was rounded up in that same raid. The Obama DOJ opposed his petition even though the Bush administration had cleared him for release in 2007. He has now spent roughly 30% of his life in a cage at Guantanamo.

What's most significant about this is that Hassen is now the 36th detainee who has won his habeas hearing since the Supreme Court in 2008 ruled they have the right to such hearings -- out of 50 whose petitions have been heard. In other words, 72% of Guantanamo detainees who finally were able to obtain just minimal due process (which is what a habeas hearing is) -- after years of being in a cage without charges -- have been found by federal judges to be wrongfully detained. These are people who are part of what the U.S. Government continues to insist are "the worst of the worst" who remain, and whose release is being vehemently contested by the Obama DOJ.

Asked why he's so animated now, Romero said: "It’s 18 months and, if not now, when? ... Guantanamo is still not closed. Military commissions are still a mess. The administration still uses state secrets to shield themselves from litigation. There's no prosecution for criminal acts of the Bush administration. Surveillance powers put in place under the Patriot Act have been renewed. If there has been change in the civil liberties context, I frankly don't see it."

Many analysts now regard it as unlikely that Guantanamo, which was supposed to close this past January under Obama's presidential order on the subject, will close this year. Romero agreed that if Sept. 11 trials proceed before military commissions at Guantanamo it's hard to see how the prison will close in the year or two after that.

"The unwillingness of the administration to stick by its guns and prosecute the Sept. 11 defendants in criminal court does not bode well for the broader civil liberties agenda," he said. "The fact they've not announced anything raises the specter of doubt that, in itself, is debilitating to the Justice Department and raises serious questions about the administration's commitment to the rule of law. Their silence speaks volumes."