Lost against the predictable hubbub about the predictable Kagan nomination, Attorney General Eric Holder announced last week that he will ask Congress to cut back on a decades-old constitutional protection for criminal suspects. He wants Congress to legislate an emergency “public safety” exception to the Miranda warnings that are given by police to suspects upon arrest to inform them of their constitutional rights. With some sharp liberal commentators endorsing the proposal , should progressives tone down their usual opposition to limits on criminal suspects’ rights?
Not so fast. There is more to the Holder proposal than meets the eye. On the one hand, the proposal is likely to have little effect on the ground. But it is disturbing as a political concession. It is an admission that former Bush administration officials' framing of the debate over terrorism—in which core constitutional rights are eroded without tangible gains in security—continues to determine what’s politically feasible today. Accepting this frame may be the path of least resistance today. But it robs the Obama White House of a durable, defensible position on civil liberties tomorrow, and thus invites the deepening erosion of our core civil liberties as a side effect of political point-scoring.
To understand the Holder proposal, it’s helpful to know more about the Miranda warnings that police since 1966  have had to read suspects before questioning. The Supreme Court first demanded Miranda warnings as a way to protect suspects against police coercion that violated the Fifth Amendment right against self-incrimination. Until 1966, courts made case-by-case determinations of whether police had coerced suspects into false confessions. In the three decades before Miranda, two-thirds of the cases before the High Court involved the death penalty. Many came from the Jim Crow South. Yet because of the secrecy around the interrogation room, judges were placed in the impossible bind—being asked to weigh the testimony of (often black) suspects against that of many (almost always white) cops, without knowing whether the suspect’s testimony had been coerced. The result was massive underenforcement of the Fifth Amendment.
Miranda was supposed to fix that by ensuring that suspects could seek a lawyer before interrogation. Despite years of bitter tirades from police and politicians, the Miranda warnings stuck. In 2000, a seven-justice majority of the High Court, with then-Chief Justice Rehnquist writing, rejected as unconstitutional a federal statute  seeking to replace Miranda warnings with the old all-things-considered test.
Holder and his supporters want the law to define by statute an emergency “public safety” exception. As they note, the Supreme Court in 1984 recognized an emergency exception  to Miranda when “public safety” demands. But the so-called Quarles public-safety exception, they explain, focused on ordinary crime. The Quarles Court gave little guidance on how to deal with terrorism. And lower federal courts today are divided on now imminent a risk must be for the public-safety exception to apply. The Holder proposal, it is claimed, would bring clarity because, even if the law were challenged, the justices would defer to Congress’s expertise and wisdom.
This logic is comforting but unsound. The first problem is that Miranda is a constitutional rule. The Court in 2000 was clear that it, not Congress, had the last word about its meaning. Even if Congress speaks today on exceptions to Miranda, the Court must still weigh in. Even if Congress passes a statute that allows FBI agents more leeway for “emergency” questioning, agents cannot be certain “un-Mirandized” confessions will not be thrown out in the courts.
Equally problematic is the premise, peddled by Representative Peter Hoekstra and others , that Miranda rights stop interrogations and thus pose a risk to security. Miranda’s critics skate over the fact that the decision does not in fact ever prohibit questioning: It rather directs that interrogations without Miranda warnings cannot be introduced at trial in the prosecutor’s central case. Critics who imply that Miranda stops questioning altogether are simply fibbing. If law enforcement chooses to keep questioning without a lawyer, Miranda doesn’t stop them, even if it does direct courts down the road not to accept the resulting evidence.
Moreover, the Court since 1966 has lost no opportunity to weaken Miranda and to enable police to end-run it. So if a suspect is not “Mirandized,” the prosecutor cannot use the answers in the so-called “case in chief,” that is, the prosecutor’s main case. But if the defendant chooses to testify, then the prosecutor can introduce the evidence so as to impeach him!
Physical evidence found as a result of the non-Miranda questioning can also be used. The Court has also signed off on tactics designed to circumvent Miranda. For example, the Court has said it’s fine for police to interrogate without giving the warnings, get information and then give the warnings before pressing a suspect to repeat himself verbatim.
This is why the argument that a new law is needed to nudge the Court into giving police more latitude is misplaced. The justices already bend over backward to accommodate law enforcement, even when terrorism is not in the mix. It’s close to frivolous to suggest that the federal courts would even exclude evidence based on a Miranda violation in a terrorism case. (In the one case in which a federal court of appeals in New York confronted this problem, it allowed the evidence in, despite the Miranda violation). Even without Kagan’s likely pro-administration vote, the Court already tilts toward the state and against Miranda.
Furthermore, Miranda does not stop suspects from talking. Studies find an overwhelming number of defendants waive their rights and do talk. The ones who keep mum tend to have past felony convictions and experience with law enforcement. For this group, Miranda likely makes little difference. They know enough not to talk. Likewise, it’s hard to believe that a determined and dedicated terrorist will decide whether to talk based on access to a lawyer. The Holder proposal and the Miranda debate to which it reacts, in short, is political theater with scant consequence for actual security.
Perhaps Holder knows this. Perhaps the proposal is proffered to divert attention away from even more harmful ideas, such as Senator Joseph Lieberman’s misguided citizenship-stripping notion, which would treat being a suspect in a terrorism case as grounds to deprive a person of citizenship.
Whatever its animating spirit, the Holder proposal entrenches a deeply harmful political dynamic. It shows that this administration has accepted the terms of public debate on terrorism and national security framed by Dick Cheney et al. It shows a Democratic administration again shirking its responsibility to define the debate, and triangulating instead. (Remember how well that went during the Clinton years.) It shows we have failed to throw off the straitjacket of fear that has pushed us time and again into knee-jerk and foolish responses to terrorism, from trying to gut habeas corpus to invading Iraq. If this is all the Obama administration has to offer by way of a new politics of national security, we are in deep trouble.
Yet even in the narrow confines of the Miranda debate, the administration can do better. There is an alternative proposal that would improve both security and liberty: videotape all interrogations, whether with counsel or not. Taping has clear security gains. The CIA, recall, taped its interrogations of terrorism suspects in military custody. Now the Defense Department has indicated it will videotape  too. Who now would be against ensuring the accurate transcription of what suspects say? But recording interrogations is also a good way to prevent illegal coercion. Recall the CIA’s decision to destroy its tapes  once it saw they posed a prosecution risk. The agency knew that the taping solves the original problem of competing accounts that Miranda was intended to solve. (And a new law would have to prevent such tampering, of course). Indeed, there’s some reason to believe it does so better than Miranda ever did.
The Holder proposal is a sideshow, but a dangerous one. If taping is not in the mix when actual legislative language is proposed, it’s a good bet that what’s at issue is politics, not policy.