Politicizing Miranda

Modifying who has the right to a Miranda warning is a political solution to a national security problem that doesn't exist.

By Adam Serwer
May 20, 2010
Courtesy Of "The American Prospect"

In 2002, shortly after the 9/11 attacks, then-FBI Special Agent Colleen Rowley wrote a memo to FBI Director Robert Mueller saying that the FBI needed more guidance on when it could apply the public-safety exception that allows law enforcement to postpone reading a suspect his or her Miranda rights in the event of imminent danger.

"We were prevented from even attempting to question [Zacharias] Moussaoui on the day of the attacks when, in theory, he could have possessed further information about other co-conspirators," Rowley wrote.

The letter prompted an invite for Rowley to testify before the Senate in June of 2002 about the public-safety exception to Miranda. Rowley urged Congress take up the issue, stressing that "with the focus now on preventing acts of terrorism, the law in this area needs to be clarified." For the next four years of Republican control both in Congress and the White House, nothing was done.

Eight years after Rowley's testimony, Miranda is now at the center of the political debate over how terrorism should be handled. After testifying before the Senate about the May 1 Times Square bombing attempt, Attorney General Eric Holder announced on Meet the Press that the Obama administration wants Congress to modify the public-safety exception to Miranda -- allowing law enforcement more leeway in how they must advise suspects. But civil libertarians and even experienced FBI interrogators argue that attempting to modify Miranda would be a political solution to a national security problem that doesn't exist.

The issue is much larger than reciting the now-familiar right to remain silent. It's really about a set of criminal-justice procedures following arrest that can potentially interfere with intelligence gathering. "When Holder says Miranda, what he really means is the collection of legal issues which you're supposed to deal with as quickly as possible," says Ben Wittes, a scholar at the Brookings Institution. "We ought to design a first few days, first few hours for the kind of situation when the government pulls someone off a plane with their underwear on fire."

Since President Barack Obama took office, Miranda has been a flash point for conservatives looking to criticize the administration's responses to national security threats. In the aftermath of the attempted bombing of a Detroit flight in December, the alleged perpetrator, Umar Abdulmutallab, was interrogated under the public-safety exception and, according to the administration, read his Miranda rights only after he stopped talking. Conservatives were furious, accusing the Obama administration of giving priority to legal niceties over public safety. In the aftermath of the Times Square bombing, conservatives warned the administration not to read the suspect, Faisal Shahzad, his Miranda rights.

Conservative criticism of Miranda itself has had a dramatic effect, which can be seen in the administration's handling of the Times Square attempt. Testifying before a Senate subcommittee on May 6, Holder said Shahzad had been questioned for "hours" under the public-safety exception before being read his Miranda rights. According to the administration, he also waived his right to be brought before a judge and so was questioned for two weeks before seeing the inside of a court on Tuesday.

After Holder announced the administration sought to change the rules around Miranda, The New York Times reported that the administration also wanted to be able to prolong the time that law enforcement can detain a suspect before bringing him or her before a judge, generally 72 hours. Under the PATRIOT Act, law enforcement can actually get an extension -- in the case of a non-citizen -- as long as seven days. The administration's position on Miranda represents a reversal from its previous position, supported by veteran FBI national security officials like Ali Soufan, Jack Cloonan, and Joe Navarro, that law-enforcement procedures don't interfere with intelligence gathering.

"There is a fundamental inconsistency; on the one hand, the attorney general concedes that Miranda has been no obstacle to intelligence gathering, and on the other hand, proposes that a core constitutional protection be sliced away," says Ben Wizner, an attorney with the ACLU. Government officials aren't prohibited from interrogating suspects without Miranda warnings -- they just can't use the statements made prior to Miranda in court.

Although the administration hasn't revealed a detailed proposal, experts are already weighing in on what such a "modification" should include, or if it should be done at all. "I'd leave it applying, even to a domestic kidnapper who has buried someone alive," Rowley says. "I don't think you should discriminate as to who it applies to."

Wittes, who has proposed easing Miranda requirements in the past, says that the exception should be narrow and only used in very specific kinds of terrorism cases. Wittes explains that the administration's obligation to present a suspect before a magistrate could interfere with intelligence gathering.

"In the kidnapping context, once you've saved the life of the kidnapping victim, the issue is over, there isn't an inherent interest in intel for intel's sake," Wittes says, adding that if you have to stop interrogation to bring a suspect before a judge, they might stop talking.

"If you're focused on this crisis interrogation where you're trying to get as much as possible, stopping it and having this real formal session where you're asking, 'Do you really want to have this conversation?' is not what you want to be doing."

The ACLU's Wizner calls the easing of Miranda rules a "solution in search of a problem," pointing out that Shahzad was cooperating with investigators. "What we're really talking about is holding people who claim they're innocent and want to go before a court longer than that period of time [allowed]." Pointing to the case of Khaled al-Masri, a German citizen who was mistaken for a terrorist, captured, and allegedly tortured by the CIA in Afghanistan for several months before being released, Wizner calls the proposal an attempt to "chip away" at "protection against those kinds of errors."

Conservatives have also been cool to the proposal, but for different reasons. Dr. James Carafano, director of the Heritage Foundation's Douglas and Sarah Allison Center for Foreign Policy Studies, says the solution is simply to put the suspects in the military system.

"You could declare them an enemy combatant and hold them until the conflict's over," Carafano says. "I think that's a perfectly adequate remedy."

It is, however, a remedy fraught with complications. The Bush administration put two terrorism suspects captured domestically, Jose Padilla and Ali Saleh al-Marri, into the military system. But in both cases, authorities did so not out of principle of avoiding Miranda but because they were worried a judge might order either suspect freed. Both were ultimately moved back into the civilian system. Padilla never talked, and al-Marri did not begin cooperating with interrogators until his case was shifted back to federal court. Both were ultimately sentenced in civilian courts.

"There's no history in the Bush administration of pulling someone off a place and designating them an enemy combatant; it just never happened," Wittes says. "When the Bush administration was in power, they presumptively treated every single domestic capture as a law-enforcement matter, without exception." Indeed, in March, the Justice Department released a chart showing that more than 403 individuals had been convicted in civilian terrorism trials since 2001.

Wittes says altering Miranda would be an appropriate way to reconcile the convergent but distinct goals of gathering intelligence and ensuring conviction. But both Carafano and Wizner agree that the administration was undermining its own arguments about fighting terrorism with "the rule of law."

"If the whole argument of the administration is we're going to do this under the rule of law, but we're going to change the rule of law so we can deal with terrorists, they're basically arguing against their own case," Carafano says, adding the tinkering with Miranda likely wouldn't pass constitutional muster and could unintentionally erode civil-liberties protections in other areas. "In most violent acts, you don't understand intent at the scene," Carafano says. "The police could say, I think this might be a terrorist attack, let's delay Miranda."

Wizner points out that the verdict in the original case, Miranda v. Arizona, was deemed necessary in part because of the rash of false confessions across the Jim Crow South, where white police would beat black suspects into confessing.

"Miranda really is a means of protecting the fundamental constitutional right against having a confession beaten out of you," Wizner says. "There are very sad parallels between police abuse in the 1950s and '60s and the torture regime we're trying to extract ourselves from."