When Attorney General Eric Holder told interviewers yesterday that Congress should consider "modifying that public-safety exception [to the Miranda protections]," he was either ignoring the obvious--the exception is an artifact of a court decision--or he was attempting to send some sort of a signal to Congress, the public, and the FBI that his Justice Department is doing something about the alleged constraints that investigators find themselves in when the unknown unknowns are many.
A spokesperson for Holder would not elaborate and said that his remarks speak for themselves. A White House spokesperson did not return several requests for comments.
I assume that the AG is not ignorant of the lineage of the exception, which was discovered by the Supreme Court in 1984. A majority held that "concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda."
The reality is that Congress cannot modify Miranda or the so-called "Quarles" exception. Indeed, there is a Supreme Court decision, Dickerson v. U.S., that significantly limits Congress's ability to modify the content and power of the warning. Since Miranda warnings are a constitutional right, Congress cannot overrule them.
What Congress CAN do -- and this is what I think Holder was getting at -- is help frame the issue more favorably to the executive branch by endorsing an interpretation that expands what FBI agents can consider as exogenous factors when determining what the scope of the public safety exemption ought to be in a particular instance.
Second, if an FBI investigation team is later found to have violated the statute, it helps to have such a law on the books -- this will allow the government's lawyers to show that the agents were relying on a statute and were acting in good faith.
Third, to the extent that the public believes that the current Miranda exemptions are hurting the prosecution of the war on terrorism, promising to legislate a modification provides evidence that something is being done, even if nothing is actually being done.
A final possibility is that Congress can create a sort of Miranda exception that has nothing to do Miranda itself.
As Orin Kerr noticed, Rule 5 of the Rules of Criminal Procedure require the government to present a witness to a judge without delay unless a statute requires otherwise. Congress can pass a new law providing such a pretext if it wants to.
The point is that Holder's comments were a speech act, more than a specific promise about Congressional legislation. Civil libertarians who are upset about Holder's words will probably find themselves more troubled by his intentions. And I don't think Holder will particularly care: in his view, there is nothing unseemly at all about interpreting the Miranda public safety exception in a way that helps investigators determine whether other terrorist attacks are imminent. I suspect Holder is quite willing to risk early evidence, like a confession, being thrown out by a judge if FBI agents interpret the exception too liberally for a judge's taste, particularly if the information collected by the FBI helps to save lives.
Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.