A Liberal Who's Been Mugged

By Mike Dorf

That's the punch-line to one half of an old joke:

Q: What's a liberal?

A: A conservative who's been indicted.

Q: What's a conservative?

A: A liberal who's been mugged.

In announcing that the Obama Administration will seek to expand its authority to interrogate suspects without reading them their Miranda rights, AG Holder has left my head spinning.  We now have both Senator McCain and President Obama for limiting Miranda, while Glenn Beck (GLENN BECK!!) on the other side.  says of Faisal Shahzad: "He’s a citizen of the United States, so I say we uphold the laws and the Constitution on citizens . . . .  He has all the rights under the Constitution. We don’t shred the Constitution when it’s popular."

This bizarre turn of events would at least make political sense if Shahzad had been giving the FBI actionable intelligence but then clammed up as soon as he was read his Miranda rights.  But there's no indication whatsoever that this happened in Shahzad's case or in any other case.  The mugging of Holder and Obama was accomplished not by terrorists but by other politicians, vying for the political space to their right on terrorism.  Explaining the administration's shift, Holder said on NBC: "We’re now dealing with international terrorists . . . and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face."

What does he mean, "now?"  In the wake of the Shahzad case we now know that the Pakistani Taliban are attempting to attack U.S. targets, but why does the addition of one group to the roster of enemies change the calculus so dramatically?  Or to put the point more, well, pointedly: If Holder and Obama didn't think that 9/11 justified departing from Miranda, why does the addition to the calculus of a failed car bombing in Times Square change that conclusion?

Meanwhile, it's worth considering the doctrine.  The Administration seeks authority to interrogate detainees under the "public safety" exception to Miranda first recognized in New York v. Quarles.  There, the Court allowed into evidence a statement ("the gun is over there") and a gun that were the product of an unMirandized question ("Where is the gun?") asked by the police right after arresting a suspect in circumstances in which a loaded gun posed an ongoing threat.  The exception in Quarles was for a period of seconds.  The Obama Administration would like to see it expanded to cover unMirandized interrogations that last for hours.

Such an expansion of the public safety exception could not possibly be justified on the ground that there isn't time to read the warnings.  Rather, the argument would have to be that reading the warnings might deter the gathering of actionable intelligence.  That sort of argument is not ruled out by Quarles, where the Court said: "if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles' position might well be deterred from responding. "  So the Quarles Court was worried that the warnings might dissuade a suspect from talking.  However, it's not clear that the Quarles Court thought that even this concern would justify any form of prolonged interrogation.  The very next paragraph talks about the decisions police must make "in a matter of seconds."  It's hard to see how that becomes hours.

Of course, any change in Miranda would be subject to challenge in the courts.  Having held in 2000 that Miranda can't simply be repealed by ordinary legislation, the SCOTUS would ask whether a dramatic expansion of the public-safety exception is needed.  Here the answer is almost certainly no.  As Yale Kamisar summarized the evidence a few years ago, except for longtime Miranda critic (and former federal judge) Paul Cassell, "there is wide agreement that Miranda has had a negligible impact on the confession rate."  One would hope that in considering whether to expand the public safety exception, the Court would demand substantial evidence that things are different with respect to terrorism suspects.

Finally, there is an alternative way for the government to evade Miranda: persons legitimately held in military custody are not entitled to the protections of the criminal justice system.  A lawful enemy combatant cannot be interrogated at all (beyond name, rank and serial number), but that prohibition does not block humane interrogation of unlawful enemy combatants, as bomb planters would certainly be classified.  Taking this route would have serious consequences, though.  First, evidence obtained as a result of non-Mirandized interrogations could not later be introduced in a civilian criminal trial, which would obligate the government to try the suspect before a military tribunal or not at all.  Second, the key word above is "legitimately."  Although the Hamdi case upheld the power of the government to subject a U.S. citizen to military jurisdiction, it did not define the outer bounds of that power.  Would the government be able to subject any U.S. citizen to military jurisdiction simply on the ground that he is charged with an offense denominated an act of terrorism?  I don't read Hamdi as going that far, but the Court never reached the merits in the case that came closest to presenting it, Padilla.

Bottom Line: The Obama Administration may prove to be as good at generating constitutional law exam questions as its predecessor.