Yesterday, The Wall Street Journal reported changes to the FBI's Miranda policy that have already been long known -- FBI agents now delay reading of Miranda in some terror arrests. Charlie Savage has more details:
In most cases, the memorandum said, after public safety questions have been exhausted, interrogators should advise the terrorism suspect of his rights. But in certain “exceptional cases,” agents may continue to ask questions without a Miranda warning “to collect valuable and timely intelligence not related to any immediate threat.”
However, it said, such extended questioning must be approved by supervisors who would weigh “the disadvantages.” A footnote listed precedents ruling that prosecutors could not use self-incriminating statements made by a defendant before a warning.
While their was some consternation on the left and some predictable reactionary glee on the right, the reality is that nothing much has changed, because the FBI does not have the power to amend the Constitution.
Just to reiterate, Miranda doesn't govern interrogation; it governs admissibility of evidence. That's why it doesn't interfere with interrogation, because the only thing it impacts is whether a statement is admissible in court, not whether the FBI can use it as intelligence. The only thing the new policy will do is make it more difficult to convict terror suspects in court, although I suspect that FBI agents will only delay Miranda in cases where the evidence is so overwhelming that it doesn't matter. As a political gesture, it may convince Republicans that having Defense Secretary Robert Gates rubber-stamp the civilian trial of every jerk caught with a firecracker and a copy of the Qu'ran is a bad idea.
As I noted yesterday, former top FBI Official Phill Mudd has written, "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." It's. Irrelevant.
Yesterday, I suggested that changing the rules of admissibility might return us to the pre-Miranda era where cops could easily beat confessions out of their suspects. Robert Chesney explains that the Fifth Amendment still protects individuals against involuntary statements, so that wouldn't be the case.
The fight over Miranda is a prominent example of culture-war counterterrorism -- an area in which Republicans have managed to gin up outrage over a complete fiction that, to someone who spends their Saturday afternoons watching 24 episodes on DVD, sounds like a real national-security issue.
