So here's an interesting get: Sol Wachtler, the judge who carved out the public safety exception to Miranda in the Quarles v. New York case, writes for the New York Times that creating a broad terrorism exception is a bad idea:
[R]esolving immediate emergencies is about as far as we should go in delaying the Miranda reading or creating exceptions to it. To open non-emergency exceptions, like the one proposed by the Obama administration for terrorism suspects, would be to go down a road toward the eventual nullification of the constitutional protection against self-incrimination.
The Miranda rule strikes a delicate balance, enabling us to protect a fundamental constitutional right without forcing the courts to allow the legitimacy of every confession to be proven before it is allowed into evidence. To compromise the rule would be counterproductive and destructive to the kind of freedom we enjoy as Americans — a freedom that terrorists would like nothing better than to destroy.
Pulling Umar Abdulmutallab off a plane with his pants on fire is an obvious situation where the exception might be used -- there might be other planes in the air with underwear bombers. But I think what people are worried about and what Wachtler is saying is that carving out a broad exception for non-emergency terrorism cases would just allow coerced confessions back into the process. The primary effect of Miranda was that cops simply couldn't beat a confession out of you anymore and expect it to stick. It's obvious why a pro-torture party would find that irritating, but the government isn't having any trouble convicting people on terrorism charges.
We still don't really know what the administration is proposing though, and folks at the Justice Department declined to clarify for me yesterday, pointing me to Attorney General Eric Holder's testimony before the House Judiciary Committee today. I'll let you know how that goes.
-- A. Serwer
