Miranda and 'Enhanced Interrogations'

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>Merely two months ago, Attorney General Eric Holder strongly defended the issuance of Miranda warnings to terror suspects and reminded his Republican critics that, since 9/11, the criminal justice system has generally proved quite effective in prosecuting failed terror attacks, like the aborted Christmas Day bombing of a Northwest airlines flight.  Holder's defense of liberty, justice, and reason -- like the administration's determination to close Guantanamo and try the 9/11 defendants in federal court -- was nice while it lasted.  Now the Attorney General is asking Congress to enact legislation codifying an exception to the Miranda rule in cases of suspected terrorism.   
   
Why the change in policy? Current (and longstanding) rules governing interrogations are too inflexible and insufficiently "consistent with the threat we now face," Holder explained.  It's not clear that the threat of terrorism has substantially changed since he extolled the current rules, although the perceived political threat of resisting Republican criticisms may have increased.  Nor is the need for additional flexibility immediately apparent: the administration has acknowledged delaying the issuance of Miranda warnings in the interrogations of would-be Christmas Day bomber Umar Farouk Abdulmutallab and Times Square suspect Faisal Shahzad.  But, as the New York Times observed, interrogators have been "stretching the traditional limits" of a public safety exception to the Miranda rule, and Congressional approval of these ad hoc interrogation practices would make them much less vulnerable to judicial challenges.  Or maybe Miranda v. Arizona is an example of liberal judicial activism recently lamented by the president.  In any case, legislation loosening if not entirely repealing Miranda rules (perhaps over the opposition of a few civil libertarians in Congress) seems inevitable.
   
This may not enhance the prosecution of terror suspects or the administration's reputation among Republicans for protecting national security.  Will it enhance interrogations?  Will it effectively legalize torture?  Is legalizing torture an underlying purpose of the drive to deny terror suspects (and the operative word is "suspects") their Miranda rights (among others)?  Miranda warnings are mechanisms for enforcing the constitutional privilege against self-incrimination, which is, in part, a safeguard against (unreliable) coerced confessions.  The Supreme Court generally focused on deterring psychological coercion when it issued the Miranda rule in 1966.  But, as Justice Rehnquist (not known for his liberal activism) observed in Dickerson v. U.S., a 2000 decision declining to repeal Miranda, rules against coerced confessions are rooted in English common law and partly reflect a reaction to the use of torture.  

Miranda was a controversial decision, accompanied by "stinging dissents," The New York Times reported at the time, and some law and order conservatives have never accepted it.  But law enforcement adapted to it long ago; it has "become embedded in routine police practice," Justice Rehnquist concluded in Dickerson.  The Rehnquist Court's refusal to overrule Miranda quelled (or depressed) opposition to it for a time, and Republicans did not denounce the Bush administration's adherence to it in criminally prosecuting terror suspects (notably aborted shoe bomber Richard Reid), as Holder stressed, in vain, two months ago.

But if rational, fact-based arguments are irrelevant in these battles, concessions may be politically futile.  A policy of appeasement will only encourage, not deter, partisan attacks.  Administration critics will still clamor to submit terror suspects to "enhanced interrogations," designate them as enemy combatants, and formally strip them of their citizenship (supposedly moderate Massachusetts Senator Scott Brown is co-sponsoring a citizenship-stripping bill targeting people who allegedly support terrorism).  Even if it endorsed these draconian, unconstitutional proposals, the administration would still be portrayed as weak on national security; in addition, it would have to plead guilty to being weak on the rule of law.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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