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Tinkering With Miranda


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The Obama Administration has taken a pounding for its decision to treat terrorism as a civilian crime rather than as an act of war. So Attorney General Eric Holder is now offering an apparent concession to his critics by proposing to broaden a public safety exception to the Miranda warnings that are given to all criminal suspects. This is more troubling than it sounds.

After Faisal Shahzad was arrested in this month's failed car bombing in New York, federal agents questioned him for several hours before advising him of his rights under the 1966 case of Miranda v. Arizona. They were able to do so under a longstanding exception to Miranda, which the U.S. Supreme Court spelled out in New York v. Quarles (1984). "The need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination," Justice William Rehnquist wrote in that case.

Mr. Holder is now emphasizing this public safety exception as the key to making Miranda compatible with the national security demands of the war on terror. He told ABC's Jake Tapper on Sunday that he would like to toughen it up: "We have to give serious consideration to at least modifying that public safety exception." He said the Administration is reaching out to Congress "to come up with a proposal that is both constitutional, but that is also relevant to our time and the threat that we now face."

There's no doubt this is politically shrewd, making the Administration look more hawkish by inviting criticism from the ACLU and others on the anti-antiterror left. It also lets Mr. Holder claim that the U.S. can interrogate terrorist suspects and still try them in civilian courts. And it's true that the Miranda exception can work with someone like Shahzad, who was by the Administration's account willing to cooperate after his capture.

The problem is that we won't always be so lucky. Many terrorists are hard cases—such as Khalid Sheikh Mohammed—who won't want to cooperate. In a case involving networks of terrorists who seek mass civilian casualties, the threat to public safety is much more diffuse and dire than in a typical criminal case. Getting useful intelligence to prevent future attacks may require days, even weeks or months, of interrogation, as it did with KSM and other high-value detainees.

It's far from clear that the Supreme Court would allow Miranda to be stretched in this fashion. In Dickerson v. U.S. in 2000, the Court rejected the argument that Congress could repeal the Miranda warnings, affirming that they were mandated by the Constitution.

Chief Justice Rehnquist wrote for a 7-2 majority that even if Miranda was wrongly decided, it "has become embedded in routine police practice to the point where the warnings have become part of our national culture," and therefore the precedent must stand. Congress and Mr. Holder could agree to an exception that allows KSM-length interrogation, only to have the High Court strike it down.

The larger problem is that Mr. Holder's solution still equates unlawful enemy combatants who violate the laws of war with common criminal defendants. This gives terrorists more respect and rights than they deserve, and it risks corrupting the criminal justice system as well.

The High Court was right in Dickerson that the Miranda process has become embedded in police practice, and opening a wider public safety exception risks confusing law enforcement and leading to more legal challenges about which suspects qualify. When you resolve to treat terrorists like common criminals, the danger is that you will end up treating common criminals like terrorists.

Mr. Holder's Miranda gambit is too clever by half, an attempt to treat terrorists as civilian criminals while claiming this does no harm to public safety or civil liberties. We think it does harm to both, which is why the proper policy is to declare most terrorists as unlawful enemy combatants and try them in military tribunals.
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