John W. Dean

Messing With Miranda Rights To Fight Terrorism: Did Attorney General Holder Need A Warning, Too?

By JOHN W. DEAN
Friday, May 14, 2010

This is the first in a two-part series of columns on the Obama Administration's apparent plans to create an exception to the 1966 Supreme Court ruling in Miranda v. Arizona to deal with terrorists. – Ed.

This past Sunday, May 9, several news/talk shows featured Attorney General Eric Holder, who says that the Obama Administration is reconsidering whether Miranda warnings will be given to terror suspects.

As readers likely know, the 1966 ruling by the U. S. Supreme Court created a bright line for law enforcement which requires, at a minimum, that American citizens who are apprehended for a crime in this country must be warned of their right to remain silent; must be informed that anything they say may be used against them; and must be told that they have the right to an attorney.

Now, that clear, longstanding precept may change. But junking Miranda, as I will argue, would be a grave mistake.

Why Is The Obama Justice Department Adopting a Tactic Even Bush/Cheney Eschewed?

Not even the Bush/Cheney administration – which famously took a no-holds-barred approach to dealing with terrorists – sought to make exceptions to this golden rule of modern American criminal justice. Thus, it is quite surprising to see this sort of thinking coming from an administration that was elected to take a very different approach to suspected terrorists – an approach that remembered civil liberties and human rights, that was cognizant that some detainees may in fact be innocent, and that recognized that the ends do not always justify the means.

It is only a few short steps from weakening Miranda to embracing Bush/Cheney tactics like torture. To have the current Justice Department suggest changes to this almost-half-century-old protection of the innocent is sharply at odds with President Obama's approach since taking office – an approach that has worked wonders for America's image in the world, and which is refurbishing our reflection as a nation that is dedicated to justice and the rule of law.

I am thus compelled to wonder whether Mr. Holder had carefully thought through this apparent change before he appeared on last Sunday's talk shows. I can only hope that this, instead, might have been a visceral political reaction – one that will be reconsidered in time. As I watched the coverage, it struck me that it was as if a journalist had mugged the Attorney General on national television.

The Facts Show that Miranda Is Not a True Impediment to Interrogation – So Why Is Attorney General Holder Contemplating Changing It?

Look at the facts, which are as available as your Google search engine: There is no evidence, after decades of empirical studies, that Miranda has ever been a serious problem for law enforcement. There is no evidence that Miranda is a serious problem in dealing with terrorists. And the only people complaining about Mirandizing terrorists are Republicans.

While the prospect of messing with Miranda is no doubt music to the ears of Republicans, surely Mr. Holder knows that his critics want much, much more. They would prefer to label all terror suspects "enemy combatants"; jail them indefinitely if they are Muslims from the Middle East; and if they do not reveal plots to destroy America, then water-board them until they confess. Miranda is, of course, something of an obstacle for this "conservative approach" to fighting terrorism.

We do yet not know what the Obama Justice Department has in mind. And from watching and listening to Attorney General Holder last Sunday, I suspect that he does not quite know either. Holder's appearance made me think that someone should have given him an appropriate warning – for he had the right to remain silent, the statements he made are now being used against him, and he had a right to an attorney who had more seriously considered the subject before it was discussed on national television.

Nonetheless, Holder – as able an attorney general as the nation has had in a long while – did make many important points about Miranda in the context of dealing with terrorists, all of which suggest that his call for change was not fully thought-out and well-considered.

Holder's Report and Ruminations Regarding Miranda

Mr. Holder's statements were dubbed an "announcement" by the news media. But in fact, the information he conveyed seeped out in dribs and drabs in response to a series of leading questions during his appearance.

Host David Gregory wandered into the Miranda thicket when asking the Attorney General about the handling of the attempted car-bombing in Times Square by Faisal Shahzad. During his appearance, Holder corrected reports that Shahzad had been subjected to eight hours of questioning before being given his Miranda warnings. Holder also confirmed that the Obama Justice Department is using the "public safety exception" to Miranda in terror cases "to make sure that there are no immediate threats."

More specifically, Holder explained that, in the Shahzad case and other such situations, a determination was being made whether it was "more important to get intelligence from this person, or is it more important for us to build the case?" (Presumably, Holder was saying that they might not give a Miranda warning if they thought it more important to get intelligence, knowing that under existing law it would be difficult to have it both ways.)

Holder added that, based on the experience of the Justice Department, "the giving of Miranda warnings has not stopped these terror suspects from talking to us. They have continued to talk even though we have given them a Miranda warning." Holder reassured David Gregory that this was the case with Shahzad, as well.

When responding to a question as to whether the tools interrogators currently have are sufficiently "flexible" (whatever that means), Holder mused that the public safety exception to Miranda was developed in the 1980s and before international terrorists threatened Americans. And that point, in turn, prompted him to ruminate further, commenting, "I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face."

Here, I've added italics to highlight the tentative, vague, can-I-get-away-with-expressing-concern-and-say-no-more nature of the Attorney General's statement. The tenor of the statement, and Holder's demeanor as he spoke, both suggested that he had not planned to make this statement, nor was he making the "announcement" it subsequently was spun by the news media as being.

Rather, in reality, Holder's statement was an invitation to any savvy journalist to do what David Gregory did when he sought to "unpack" it. In so doing, Gregory stumbled into what he would then call "news," "an important development," and "a new priority for the administration" – with a surprisingly hapless Eric Holder agreeing to each characterization.

How Press Questioning Seems to Have Given Rise to Instant – and Poorly Considered – Policy Creation

Before presidents, cabinet officers, and other senior policy officials of any administration give formal press interviews, their staff typically prepares briefing books that raise questions likely to be asked. In this way, the official is given the input of staff from the various department or agency experts who have been involved in crafting the underlying policy. Most Americans, I suspect, are not aware of how much policy is actually made in this on-the-fly fashion, at press conferences and during press interviews, notwithstanding that these briefing books often offer various (and conflicting) options.

I cannot believe that Attorney General Holder appeared on "Meet the Press" without having been so briefed. Nor, based on the answers he gave, do I believe the Department of Justice had, when he spoke, made a decision about what it might do, if anything, with respect to the public safety exception to Miranda.

If you are in doubt, examine for yourself the exchange between David Gregory and Mr. Holder:

MR. GREGORY: So let me, let me unpack that a little bit. What you'd like to see happen is that Congress would pass a law that would say to judges, "Hey, look, in this environment if we extract information that could be valuable intelligence about another terror plot, about who they're involved in, whether they're connected to the Pakistani Taliban, we want to get all that without them lawyering up and still be able to use that against them in the court of law." And you need more flexibility to do that, you think.

MR. HOLDER: Yeah. We certainly need more flexibility, and we want the public safety exception to be consistent with the public safety concerns that we now have in the 21st century as opposed to the public safety concerns that we had back in the 1980s.

MR. GREGORY: So that's news. I mean, that's an important development. Would you work with Congress to try to get that new law passed?

MR. HOLDER: Yeah. We want to work with Congress to come up with a way in which we make our public safety exception more flexible and, again, more consistent with the threat that we face. And yes, this is, in fact, big news. This is a proposal that we're going to be making and that we want to work with Congress about.

MR. GREGORY: So a new priority for the administration.

MR. HOLDER: It is a new priority.

There you have a wonderful example of a journalist inventing news, writing a story, and creating new policy – all in the process of a single interview.

The Fallout from the Gregory Interview: Further Policy Development, Apparently on the Fly

Once Holder had made these statements on NBC's "Meet the Press," the die was cast. Thus, when Holder appeared a few minutes later on ABC's "This Week," he made Gregory's leading questions his policy. (I suspect that, on the drive between NBC's studio in suburban Washington and ABC's studio downtown, Holder was further briefed, appearing a bit stronger on ABC's "This Week.")

By Monday morning, the Obama White House found itself embracing this new policy, albeit somewhat reluctantly, and appearing less than happy to do so. But White House staffers do not cut down cabinet officers, so presidential aide David Axelrod explained to CNN and downplayed Holder's statements a bit but did not contradict them. Axelrod did not speak of a new administration policy, but was far more low-key: "I think the president is open to looking at that issue. Certainly we're willing to talk to Congress about that. But they would be in the – in the area of adjustments, not wholesale revision."

David Axelrod no doubt recognizes that this is a terrible issue for President Obama – one that the President cannot win with Republicans, and one about which there is very little the President can do. My next column in this two-part series will examine what, in fact, should be done.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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