The Plum Line: The Miranda dodge

Following the domestic apprehensions of suspects after several high profile attempts to commit acts of terrorism, Republicans managed to gin up political controversies over whether or not the suspects were read their Miranda rights. Justin Elliott at Salon reports that the Justice Department has issued new guidelines for when Miranda rights should be given in terrorism cases.

Yet despite promising the "most open and transparent administration in history," Obama's Justice Department is refusing to publicly reveal what those guidelines are.

The issue of Miranda rights is something of a perfect storm for Republicans, because it allows them to combine an erroneous, xenophobic reading of the Constitution with fearmongering over Islamic terrorism. Following the alleged underwear bombing by Nigerian Umar Abdulmutallab, Republicans suggested that he should not have been read his Miranda rights because he was not an American citizen. But anyone accused of a crime on American soil has constitutional rights, because the Constitution isn't just about what rights individuals have, but about limiting the exercise of arbitrary power by the government. Even Justice Antonin Scalia, dissenting in the Boumediene case that extended habeas rights to Gitmo detainees, acknowledged that aliens within the territorial jurisdiction of the United States have due process rights.

The other argument was that informing a terrorist of his or her rights would interfere with intelligence collection, suggesting that Abdulmutallab ceased talking because he was read his Miranda rights. But as CIA and FBI counterterrorism veteran Phil Mudd has written, a terrorist's "motives for talking (or not) are not driven by Miranda." Indeed, Abdulmutallab had ceased talking prior to being read his rights -- and Miranda only governs what material can be used in court, not information that might be useful as intelligence.

Later, when would-be Times Square bomber Faisal Shahzad was arrested, interrogators invoked the "public safety exception" to the Miranda warnings, which allows interrogators to delay reading a suspect his or her rights if there is an imminent danger. But it wouldn't have mattered either way -- Shahzad was cooperating, and he even waived his right to go before a judge.

Nevertheless, Attorney General Eric Holder suggested Congress work on a new law to "modify" the public safety exception, but Republicans declined. Fearmongering over Miranda is simply too useful politically, and since it has no impact on whether or not a suspected terrorist is willing to talk, there's no real urgency to change it.

Whatever the new guidelines on the use of the public safety exception are, they're likely more a solution to a political problem than a security problem. The administration doesn't want to get caught in another political firestorm because it obeys the law even when terrorism is involved. In the process, they're allowing Republicans to exploit fears about terrorism to chip away at protections against self-incrimination. Republicans hate Miranda because some simply don't believe in the presumption of innocence, particularly in cases involving Islamic terrorism. As Reagan-Era Attorney General Edwin Meese III once put it, "If a person is innocent of a crime, then he is not a suspect."

Miranda came to be because Jim Crow cops in the South were beating false confessions out of black suspects. So there's something ominous about modifying Miranda only a few years after a previous administration approved torturous interrogations of individuals suspected of terrorism. At the very least, the administration should be making public what the new procedures are.