You Have the Right to Remain a Terror Suspect

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One story. Two stories.

Look at how differently The Wall Street Journal and the Associated Press handled the news that the Obama administration last December quietly gave FBI agents more leeway to interrogate some domestic terrorism suspects. The Journal's Even Perez, who broke the story early Thursday, wrote it up this way under a headline: "Rights Are Curtailed for Terror Suspects":

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

And here's how Pete Yost of the AP wrote it up under the headline: "Agents can delay Miranda warnings in some cases":

The FBI has issued new guidance to its agents in terrorism probes, emphasizing that law enforcement investigators can question suspected terrorists without immediately reading them their Miranda rights in some instances.

In a statement, the Justice Department says it formalized the guidance last year as a reminder that there is a public safety exception on Miranda warnings. It allows investigators to delay telling suspects of their rights to an attorney and to remain silent when there is immediate concern for the safety of the public. The guidance outlines how to use the public safety exception when appropriate.

The guidelines do not change Miranda or the public safety exception, which the Justice Department does not have the authority to alter because they flow from court decisions based on the Constitution.

Got that? Those are two very different vibes coming out of those two leads. Instead of overly parsing them, I'm going to split the difference and add a few quick points.

1.   The AP was right to point out the context. Ultimately, the federal courts, and not the FBI or the DOJ (or the Congress), will decide the constitutionality of the new formula (whatever it is) for Mirandizing domestic terror suspects. My best guess is that the new rules are constitutional, or at least will be deemed so, given the Supreme Court's recent narrowing of the scope of the warning and the fact that there already is on the books a rather large "public safety" exception to the general Miranda rule.

2.   The story thus is a bigger deal politically than it is legally, which is what Perez is getting at in his second graph. It tells us that while the Congress was stripping the Justice Department of statutory authority to prosecute the Gitmo detainees in federal civilian courts, the Justice Department was moving to toughen up its law enforcement policies to help insulate it from the sort of criticism it received in the so-called "Times Square Bomber" case (and others like it). It also tells us that the White House is concerned about, or at least sensitive to, the possibility that Congress will continue to enact restrictive measures toward terror suspects that go beyond where the executive branch wants to go.  

3.   Let's get slightly metaphysical here. The Miranda warning marks a line through the Fifth Amendment that is fundamentally necessary in criminal cases. But there is no law or rule that says the police have to Mirandize someone before they are questioned. Nor does the matter come up in court unless prosecutors seek to introduce into evidence the defendant's statements while in custody. If you are trying to light your shoe on fire on an airplane, for example, and all of your fellow passengers in the economy cabin see you do it, the cops don't necessarily need your statement to confirm what happened.

4.   Back in the day, the Bush Administration designated domestic terror suspects like Jose Padilla as "enemy combatants" in order to deprive them of core constitutional rights.  Thursday's news tells me that the Obama Administration remains content instead to nibble around the edges of traditional law enforcement practices rather than superimpose a new model over them. Some see that as a sign of weakness. I think it's closer to being a sign of the times.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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