Attorney General Eric Holder's vague proposal to "modernize" the public safety exception for Miranda in terrorism cases has already won Charles Krauthammer's approval, even though neither Holder nor the administration have given much detail as to what exactly they have in mind.
Benjamin Wittes argues that, to the extent that there is an issue with the way law enforcement handles terrorism cases, Miranda isn't really the problem:
The attorney general has said that he wants to work with Congress to give authorities more flexibility on Miranda, but what authorities really need is broader: greater flexibility in the rules that govern the first several days of these crisis cases -- rules that give the executive some time and room to maneuver before it has to make fateful decisions. This would require congressional action and judicial tolerance.
It's unclear how much latitude the courts will grant the political branches here. The constitutional law landscape is a minefield. But Holder is right to ask Congress to try. The goal should be to give authorities in emergency terrorism cases a brief period of judicially supervised detention before charges are filed -- with as much as possible of the fruits of lawful interrogation conducted within that detention available for later use in criminal proceedings.
Basically, rather than military detention for terrorism suspects captured domestically (despite the agitation for it on the right, it's been a disaster every time it's been tried), Wittes would like to see a system of civilian detention which allows law enforcement to avoid the legal obligation to bring suspects before a magistrate within hours of their being apprehended so that intelligence can continue to be collected. I've spoken to Wittes some about this, and my understanding is that this exception would be used in cases like the underwear bombing, where the government suspects there may be other ongoing plots, not just in any terrorism related arrest. I'm deeply skeptical, but this sounds like more of a real issue than the rote practice of reading someone their Miranda rights.
As for Krauthammer, he laments that "this administration seems intent upon using the civilian legal system rather than designating caught-in-the-act terrorists as enemy combatants." For the past eight years, the default presumption of the Bush administration was to treat "caught-in-the-act terrorists" who were arrested in the United States as criminals, and put them through the civilian justice system. During the Bush administration neither this policy, nor the reading of terror suspects their Miranda rights was an issue for conservatives, and it's a testament to their willpower that they are so capable of engaging in this kind of selective, mass amnesia.
There's also something disingenuous about Krauthammer's attempt to take credit for Holder's decision to "modernize" Miranda. FBI Agent Colleen Rowley asked Congress to do something about the public safety exception in the months after 9/11. Strange that Krauthammer waited until eight years later to write a column on the subject.
UPDATE: Greg Sargent reports that Democrats are pretty resistant to the idea.
-- A. Serwer
