palerider116
Regular Member
What??? I have been lied to then!
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Is Silence Before Arrest REALLY Protected?
- Thread starter TFred
- Start date
What??? I have been lied to then!
Is there a reason for jumping on him. I haven't seen him post anything offensive.
Fuller Malarkey
Regular Member
It was an observation, not an attack.
JoeSparky
Centurion
TFred
Regular Member
yes, I noticed that after I'd quoted it but had other things to attend to and never corrected it in my post .. that will be taken care of now, however.
makes more sense if you remove the word "that" before the red "I"
makes more sense if you remove the word "that" before the red "I"
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I'm not sure if that is a typo in the original or if it's something I slipped in by accident. Thanks for pointing it out.
The letter I use is modified some.
user
Accomplished Advocate
That was an earlier version - Ed's corrected it since.
As to the Fifth Amendment and Miranda warnings. The exception that is being discussed is the "ongoing emergency" rule that says that if the "primary purpose" of the interrogation is to obtain information to enable law enforcement to deal with an "ongoing emergency", then the information they recover during the interrogation can be used in evidence without Miranda warnings. But if the emergency is over with, and the primary purpose of the interrogation is to develop evidence that can be used against a suspect in a subsequent criminal proceeding, then the warnings are required. Looks to me like the Federales are a bit too gung-ho right now, and when this case comes up for trial, anything they get out of the suspected bomber during interrogation will be excluded, unless they're careful to follow the rules. Of course they may think that they can plunge ahead and make up new rules and force the judicial system to buy in because of the political pressure that will result from allowing the bomber to "get off" because they botched the interrogation.
actually the credit should go to TFred for pointing it out, I'd forgotten I needed to go back and correct it until he mentioned it
palerider116
Regular Member
Unless the purpose is to botch it and have it thrown out.
Custody plus guilt seeking questions = Miranda
Custody plus guilt seeking questions = Miranda
KBCraig
Regular Member
What with a coalition of U.S. senators and at least two thirds of Boston screaming to declare him an "enemy combatant" and ship him off to Gitmo without trial, the political pressure is real -- and far too often, the judiciary succumbs.
palerider116
Regular Member
Dangerous precedent to allow that. He was made a citizen, and he better have his Constitutional rights read to him. I abhor his actions but if we abandon our principles in our darkest hours, then we have become our own oppressor.
JoeSparky
Centurion
And it don't matter a bit if he was a US Citizen or not--- he was arrested by US NON-MILITARY authorities within the boundaries of the United States-----Read him his rights OR NONE OF US HAVE RIGHTS!
palerider116
Regular Member
That's a quagmire right there. The national guard was deployed and martial law without a declaration was in force. I wonder if they will work that angle.
JoeSparky
Centurion
I believe THAT would be violation of "posse comitatas"... Not that this would stop them if they are going to violate the law and constitution anyway!
AFCop
Regular Member
Posse Comitatus only applies to Federal troops and the enforcement of state laws. The national guard, in its home state, operates at the direction of the governor and is not prohibited from acting in a law enforcement capacity. They may also operate in an adjacent state, if invited by that states Governor.
AFCop
Regular Member
Still trying to find more
Wikipedia says The Bill/Act as modified in 1981 refers to the Armed Forces of the United States. It does not apply to the National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor. The U.S. Coast Guard, which operates under the Department of Homeland Security, is also not covered by the Posse Comitatus Act, primarily because the Coast Guard has both a maritime law enforcement mission and a federal regulatory agency mission.
Now, I know wiki isn't the preferred method but its what I can find right now. Still looking for further reference.
Wikipedia says The Bill/Act as modified in 1981 refers to the Armed Forces of the United States. It does not apply to the National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor. The U.S. Coast Guard, which operates under the Department of Homeland Security, is also not covered by the Posse Comitatus Act, primarily because the Coast Guard has both a maritime law enforcement mission and a federal regulatory agency mission.
Now, I know wiki isn't the preferred method but its what I can find right now. Still looking for further reference.
The key I believe is that the NG and AG are not part of either Army or Air Force until such time that they are called up as a Federal active unit (such as during time of war) but doesn't apply to State active duty. Until that point they are under the control of the Governor and can be utilized as the Governor sees fit.
There are many references out there on this, but here's a quote directly from one of my clients and their web site -- who runs a Joint Task Force which deals with this exact issue on a daily basis:
Section 1385 of Title 18, United States Code (USC), states:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
The PCA does not apply to the U.S. Coast Guard in peacetime or to the National Guard in Title 32 or State Active Duty status. The substantive prohibitions of the Posse Comitatus Act (PCA) were extended to all the services with the enactment of Title 10 USC, Section 375. As required by Title 10 USC, Section 375 the secretary of defense issued Department of Defense Directive 5525.5, which precludes members of the Army, Navy, Air Force, or Marine Corps from direct participation in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
The PCA generally prohibits U.S. military personnel from direct participation in law enforcement activities. Some of those law enforcement activities would include interdicting vehicles, vessels, and aircraft; conducting surveillance, searches, pursuit and seizures; or making arrests on behalf of civilian law enforcement authorities. Prohibiting direct military involvement in law enforcement is in keeping with long-standing U.S. law and policy limiting the military’s role in domestic affairs.
The United States Congress has enacted a number of exceptions to the PCA that allow the military, in certain situations, to assist civilian law enforcement agencies in enforcing the laws of the U.S. The most common example is counterdrug assistance (Title 10 USC, Sections 371-381). Other examples include:
The Insurrection Act (Title 10 USC, Sections 331-335). This act allows the president to use U.S. military personnel at the request of a state legislature or governor to suppress insurrections. It also allows the president to use federal troops to enforce federal laws when rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S.
Assistance in the case of crimes involving nuclear materials (Title 18 USC, Section 831). This statute permits DoD personnel to assist the Justice Department in enforcing prohibitions regarding nuclear materials, when the attorney general and the secretary of defense jointly determine that an “emergency situation” exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies.
Emergency situations involving chemical or biological weapons of mass destruction (Title 10 USC, Section 382). When the attorney general and the secretary of defense jointly determine that an “emergency situation” exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies. DoD personnel may assist the Justice Department in enforcing prohibitions regarding biological or chemical weapons of mass destruction."
And here's a really good reference from the Army that has all the historical info, as well as more on NG and AG not being applicable (neither BTW is Navy or Marines):
http://usacac.army.mil/cac2/call/docs/10-16/ch_12.asp
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AFCop
Regular Member
Thank you!