The Wall Street Journal reports that the Justice Department has issued an official memo that allows FBI agents to eschew giving Miranda warnings to terror suspects.
Matthew Miller, a Justice Department spokesman, said the memo ensures that "law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents." He said "the threat posed by terrorist organizations and the nature of their attacks—which can include multiple accomplices and interconnected plots—creates fundamentally different public safety concerns than traditional criminal cases."
So are Miranda rights being gutted here? I think that overstates what's happening. Miranda does not govern interrogation. It governs the admissibility of evidence in court. The FBI can interrogate someone without giving them Miranda warnings; it just can't use the information from that interrogation against them. The Supreme Court never stated that Miranda warnings were mandatory, just that statements would be inadmissible without them. So I'm not sure this actually changes anything with regards to defendants' rights, but it certainly may make it harder for the FBI to convict terrorists by making fewer of the statements they get admissible.
As I wrote last year, tinkering with Miranda is a political solution to a nonexistent national-security problem. Phil Mudd, former deputy director of the CIA's Counterterrorist Center and a senior intelligence adviser to the FBI, wrote last year that "I sat at hundreds of briefing tables for nine years after Sept. 11, 2001, and I can't remember a time when Miranda impeded a decision on whether to pursue an intelligence interview." Republicans also can't actually point to one -- even underwear bomber Umar Abdulmutallab was only read his rights after he stopped talking.
When you really think about it, the idea that terrorists would suddenly clam up because of Miranda is absurd on its face. "We’re supposed to believe that terrorists have manuals to train them to resist interrogations," says the ACLU's Ben Wizner, but "we’re supposed to believe they’ve never heard of Miranda?”
Republicans have attacked the administration for "giving" terror suspects constitutional rights they already have, and the administration is concerned about looking soft on terrorism. But because Republicans know this isn't an actual problem, they rebuffed administration overtures to codify a public safety exception with legislation. But by by issuing this memo, the administration has conceded the point. While not solving an actual national security problem, this further erodes the administration's argument that Miranda does not impede intelligence gathering.
What the administration can't do, though, is alter the criteria for admissibility. Miranda is part of the constitutional right against self-incrimination, one that arose out of white cops in the Jim Crow South beating confessions out of black suspects. "Only the Supreme Court can create new exceptions, or expand old ones," Wizner says.
A secondary question, though, is whether by doing this -- or rather, by leaking word of the memo -- the administration is trying to hold off efforts by Republicans to mandate that all domestic terrorism cases be handled by the military by assuaging fears that the FBI isn't making intelligence gathering first priority in interrogations. The timing of the article, given that the memo was first reported on by Charlie Savage back in December, suggests this might be the case.
UPDATE: Just to be clear, changing the rules on admissibility would return us to a pre-Miranda era and one in which you could just waterboard a confession out of someone and use it in court. That's not happening here -- yet.
