In a brief filed with the Supreme Court in the case of Montejo v. Louisiana, the Obama Justice Department has requested that the US Supreme Court overrule a 23 year-old decision that prohibited police from initiating a questioning of a suspect when the suspect's lawyer isn't present.
Civil rights and civil liberty groups were not pleased. It's the latest in a series of moves by the Obama administration that has upset people on the left, and it reveals an increasing tension between President Obama's campaign rhetoric and the realities of being the nation's top executive.
While President Obama has removed many of the Bush policies hated by the left, he has also come under fire for invoking the "state secrets" doctrine as a justification for withholding documents at trial, imprisoning enemy combatants without trial in Afghanistan and limiting the rights of defendants to test DNA evidence against them.
Obama seems to be finding it harder to speak out against the powers that be now that he holds the power. Obama instead speaks for federal prosecutors now, and federal prosecutors want the Court to remove the protections it put in place through its decision in Michigan v. Jackson. That case held that police can't initiate questioning of a suspect who has a lawyer or who has requested one. Anything that police learn in such an interrogation is not admissible at trial.
The administration claims that the restriction "serves no real purpose." They argue that if a defendant wishes to respond to police questioning, they should be able to.
The brief also admitted, however, that Michigan v. Jackson "only occasionally prevents federal prosecutors from obtaining appropriate convictions."
The other side argues that the administration's argument assumes that defendants and police have equal power in a custodial interrogation. They say that the rule is especially important since it protects vulnerable defendants, like the mentally and developmentally disabled and the poor.
Several observers wish to keep the decision in place simply because police departments have accepted it and incorporated it into their routine procedures.
Interestingly enough, the attorney for the defendant in the case before the Supreme Court now works at the Justice Department, but he had nothing to do with the brief.
The Supreme Court could decide as early as Friday whether or not it will hear arguments in the case.