Obama administration to consider Miranda reform

The Obama administration insists that it can provide for national security by running suspected terrorists through the criminal court system, rather than the military commissions Congress has three times authorized for the purpose of handling foreign terrorists captured abroad.  Part of the problem with that approach, although by no means the only problem with it, is the requirement to Mirandize “suspects” in order to use their statements as evidence in court, as well as any evidence those statements produce.  While the Miranda requirement has a public-safety exception, its very narrow application doesn’t work for most terrorism investigations, especially when the point of the interrogation is to determine whether an attack is imminent.

Yesterday, Attorney General Eric Holder said that the Obama administration will consider reforming the Miranda requirement through legislative action to broaden the public-safety exception:

Attorney General Eric Holder, in his first appearances on Sunday morning news shows as a cabinet secretary, said the Justice Department is examining “whether or not we have the necessary flexibility” to deal with terrorist suspects such as the Pakistani-born U.S. citizen who tried to detonate a car bomb in Times Square last weekend.

“We’re now dealing with international terrorism,” Holder said on ABC’s “This Week.” “And if we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception.”

The announcement marked a potentially significant change by the administration as it tries to manage the politics of national security after repeatedly coming under fire, mainly from conservatives, for being too willing to read Miranda rights to terrorism suspects. The administration is trying to thread a difficult needle: of taking a harder line on terrorism while staying within the confines of the criminal justice system.

Holder and other administration officials said they would be engaging Congress on putting together a proposal for changes to the law, which requires suspects to be told that they have the right to remain silent and that their statements may be used against them in court. They did not provide specifics of possible changes.

Under the current public safety exception, statements obtained before issuing the Miranda warning may be used in court — including to charge suspects — if it is determined that police needed to obtain information quickly to prevent further crimes. Once an immediate threat is ruled out, the Miranda warning must be read, under current law.

The goal of revisions would be to give law enforcement officials greater latitude to hold suspects within the criminal justice system and interrogate them for long periods of time — without having to transfer them to a military system or designate them as enemy combatants, officials said.

The entire point of Miranda is to keep law enforcement from wringing confessions out of suspects without first advising them of their rights.  If they have probable cause to suspect that a specific, explicit threat to public safety exists, then the Quarles exception applies.  Without that, though, courts will throw out any admissions and any evidence resulting from those admissions under the “fruits of the poisoned tree” principle.  That exists to keep American citizens and legal residents from the abuses of government.

The problem here isn’t that the Quarles exception is too narrow.  It’s that Miranda doesn’t apply to counterterrorism and warfare in the first place.  When the US detained Umar Abdulmutallab, he was an agent of a foreign organization making war against the United States.  The military and intelligence agencies should have had custody of the EunuchBomber from the very beginning instead of law-enforcement agencies, whose High-Value Interrogation Group hadn’t even yet been formed a year after Barack Obama dismantled its predecessor. The same is true of terrorists captured abroad, such as Khalid Sheikh Mohammed and his cohorts.

However, that’s not true of Faisal Shahzad, an American citizen caught after the botched attempt to blow up Times Square.  He acted as an agent of the Taliban, but his citizenship requires the government to handle him with full constitutional protections, especially since he was captured in the US, albeit barely.  But that means that the proper charge against such a terrorist is treason, not terrorism, for abetting the nation’s enemies in conducting war on us.

This is why attempting to shoehorn a war into the criminal courts system is so dangerous to American citizens.  In order to make it work, the federal government will have to make broad changes to criminal procedure and constitutional protections not just for a few jihadis but for everyone who appears in the federal court system for justice.   Shahzad belongs in that system, but KSM, Abdulmutallab, and the Gitmo detainees do not.  The creation of military commissions protects our rights as well as American national security.

Don’t reform Miranda.  Stop trying to turn the federal courts into theaters of war.

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