John W. Dean

Messing With Miranda To Fight Terrorism: Obama's Playing Politics With Limited Options

By JOHN W. DEAN
Friday, May 28, 2010

This is the second 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.

As I noted in my prior column in this series, Attorney General Eric Holder (sort of) announced on May 9th that the Obama Administration was considering a request to Congress for changes in the public-safety exception to the requirement that Miranda warnings be given, when it comes to terror suspects. On May 13th Holder appeared before the House Judiciary Committee, which was very interested in his announcement about Miranda, but he had little to add to his prior comments. Nonetheless, something seems to be cooking.

Sam Stein, of the Huffington Post, reported earlier this week that on May 25th South Carolina Republican Senator Lindsay Graham told reporters that he been in talks with the administration "for quite a while now" to find a way to "statutorily codify the public-safety provision." It is not clear if the Senator's talk preceded or followed the Attorney General's comments (or both), but the fact that Graham is involved could be troubling, because he wants to deny anyone suspected of a terror tactic his or her Miranda warning. Indeed, he wants much more. More generally, he does not want suspected terrorists dealt with by our criminal-justice system.

Eliminating Miranda By Making All Terror Suspects "Enemy Combatants"

At a Senate hearing on May 5th, following the arrest of Faisal Shahzad — the prime suspect in the attempt to detonate a car-bomb in Times Square — and before Shahzad had confessed, Senator Graham mounted his soapbox to proclaim that this naturalized American citizen should not be Mirandized. When "a suspect represents a military threat to our country even though they're a citizen, [we must] be able to gather intelligence before you [do] anything else," Graham demanded. For Graham, who constantly boasts his credentials as an attorney, suspected terrorists have lesser rights than run-of-the-mill serial killers.

Graham, and other like-minded conservatives, want terrorist suspects treated as "enemy combatants." And Graham lectured Attorney General Holder at length about his position during a hearing late last year. Basically, Graham claims that if an American citizen is suspected of supporting declared enemies of the United States who employ terror tactics, then that citizen should not be entitled to the same rights that our system affords to the worst of criminals. Graham was one of the most active supporters of the Military Commission Act of 2006, which sought to give presidents this option. For Graham, to be an enemy of the United States and at war with the United States is more heinous than any crime and the Obama Administration — by not making terror suspects persons without rights — is downgrading war by criminalizing it. It is a powerful, but deeply flawed argument.

My fellow FindLaw columnist Joanne Mariner, a human rights attorney, explained (here and here) many of the problems that arise when analyzing the Military Commission Act of 2009, a law that Senator Graham seems to overlook, and the fact that it amended (read: cleaned up) the Military Commission Act of 2006. Not to draw too fine a point, but notwithstanding the Senator's call for designating terror suspects as Congressionally-defined "enemy combatants," they are now to be designated, if the president believes necessary, "unprivileged enemy belligerents." As Mariner notes, however, the difference is largely semantic: Unprivileged enemy belligerents, too, do not receive Miranda warnings, and are processed outside the criminal justice system.

Clearly, treating anyone who is suspected of terrorist activity or of providing support for such activity, and designating that person an unprivileged enemy belligerent, passes over any real presumption of innocence, which is the hallmark of our criminal justice system, and a component of the Constitution's promise of due process. As Chairman Leahy pointed out after Senator Graham lectured Attorney General Holder about how he should deal with terror suspects, designating them all "unprivileged enemy belligerents" is out of step with the views of most of the military leadership and the approach of the Bush and Obama Justice Departments, not to mention the conclusions of most Americans who have thought seriously about the prospect of the military policing and prosecuting Americans as terror suspects.

It strikes me — after observing Senator Graham's mode of operation since his days in the House of Representatives — that he is negotiating with the Obama Administration to codify the public-safety exception to the Miranda warning as a first step toward also codifying the stance that terror suspects do not belong in the criminal justice system at all. In short, Graham is not to be trusted, for he is simply trying to move the administration closer to his view of the world. Surely the Obama team knows this, so what are they doing messing with Miranda?

The Obama Administration's Terrorism Politics, Within Limited Options

After Eric Holder shared his thinking about the Miranda public-safety exception when he appeared on "Meet the Press" on May 9th, I have been asking people in Washington who know these things what, in fact, is going on. The short, and repeated answer, has been that this is mostly about politics, but the belief is also that, since there is an acknowledged public-safety exception to the Miranda requirements, it would not only be good politics but good law enforcement to try to codify that exception for the problem of dealing with terrorists.

I am told that the Obama Administration fully understands that it cannot ever please the Republicans, who were unhappy that George Bush pulled back from the efforts of his Vice President to think about waterboarding terror suspects first, and asking questions later. President Bush realized the damage he was doing to the image of America throughout the world — and his father no doubt had a few choice words to say about his concern about the excesses his son's presidency was employing in the name of fighting terrorists.

Obama's administration has, in fact, largely picked up where the Bush Administration left off, which is to abandon Dick Cheney's policies — but not George Bush's. While this approach has provoked squeals of displeasure from the former Vice President, Obama has been praised by the rest of the world. In fact, he has largely made public George Bush's approach, which he has only slightly modified. Obama appears totally uninterested, for the good of the nation, in the sort of world-wrath that Cheney's thinking produces, for Cheney's over-reaction not only hurts us, but was counterproductive to our goal of fighting terrorism. What Lindsey Graham and those who share his view are doing is to continue to embrace the Cheney approach. However, rather than lessening the risk of terrorism, these tactics proved in the past to be remarkably good recruiting tools for terrorists' leaders. The Obama team is not going to go there again.

I understand that the Obama Administration is working on an effort to provide law enforcement officers who are dealing with obvious terror suspects clear guidelines as to the type of questioning they can undertake to determine the threat to Americans, before giving Miranda warnings, without jeopardizing a future criminal prosecution in our criminal justice system — which was, of course, developed long before the current prevalence of terrorism. The thinking is that if there is bipartisan support for such a narrowly-drawn, but potentially important, proposal, then the Supreme Court — which created both the Miranda rule and the current exception — will likely make that proposal the law of the land.

Those who are working on this effort believe that bringing on board the Lindsey- Graham-type thinkers brings them closer to the worldview of President Obama, and further from the thinking of former Vice President Dick Cheney. They also explained that what can be done by Congress is very limited, since only the Supreme Court can resolve the question of the scope of the public-safety exception. But it is important that they do this, because the nation's appellate courts have reached no consensus as to the scope of this exception to Miranda.

I am told that we will see the resolution of this matter soon. Balancing the "rights to life, liberty, and the pursuit of happiness" against one another has never been easy, nor simple, for each has inherent conflicts with the others. To protect life, history tells us, it may be necessary to sacrifice liberty and happiness. But without liberty and happiness, life itself has less value. During my own life, I have witnessed Hitler's fascism, Stalin's communism, and now Bin Laden's terrorism all threaten our fundamental rights, not to mention our ability to appropriately adjust the tensions between them. I trust the Obama Administration to find that balance.


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

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