Yesterday, during a Senate subcommittee hearing, Attorney General Eric Holder hinted at what is basically a new de-facto legal standard for terrorism-related arrests. Referring to the arrest of alleged Times Square bomber Faisal Shahzad, Holder said, "We made extensive use of the public safety exception before a decision was made to give them their Miranda warnings," adding that "the questioning under the public-safety exception far exceeded the time we had with [underwear bomber] Mr. Abdulmutallab."
Miranda warnings have in fact long been a bugaboo of the right, as Ramesh Ponnuru affirms here (via Matthew Yglesias). Basically, conservatives believe Miranda v. Arizona was wrongly decided and that it is too helpful to criminals. The 2 million Americans behind bars would likely differ as to the effectiveness of Miranda warnings in allowing people to get away with crimes.
At any rate, the public uproar over Miranda warnings for people accused of terrorism on the right has largely succeeded in creating a new de-facto legal standard, although you wouldn't know it from the volume of complaints. As Holder notes in the video above, the courts don't define how long the public-safety exception lasts, so the government gets a lot of leeway. Shahzad was interviewed for some undisclosed length of time prior to being Mirandized -- Holder would only say that it was longer than the hour Abdulmutallab took before shutting up. Holder's emphasis on this was likely a direct reaction to the right's attacks on the administration for Mirandizing Abdulmutallab too soon. I would be surprised if the exception isn't invoked regularly from now on.
So basically, the right has their end run around Miranda in terrorism cases, even if they don't realize it.
-- A. Serwer
