Holder’s Wrong. Terrorism’s No Reason to Relax Miranda

terrorist lineup

The Washington Post reports that the Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because¬†they’ve been read their rights. Either someone’s going to talk, or they aren’t. Whether or not the police Mirandized them first has zero effect on whether someone’s going to answer police questions.

This is another instance of where the real world differs wildly from what you see on TV. On TV, when someone gets arrested, the cops recite the litany “you have the right to remain silent,” etc. In real life, at least here in NYC, that never ever happens. The first time someone gets Mirandized, if ever, is after they’re taken back to the precinct and it’s been determined that they’re going to confess. Cops are trained not to Mirandize people, in the unfounded belief that people clam up afterwards. As a result, they lose out on a lot of statements they actually could have used.

The person who clams up after being read his rights, or demands a lawyer, would have done so regardless. They already knew the magic words, and so they said them. For those who might have talked anyway, being read their rights actually makes them more likely to do so. They may not know the significance of the Miranda warnings, but by God they know they’re supposed to be read their rights, and once that happens it’s actually satisfying and in a way relaxing. Things are as they should be. Whatever they’re thinking, nobody suddenly thinks “oh my God, I’d better shut up now” once they’re read their rights. Doesn’t happen.

So it’s a rare instance of where real life ought to be more like TV. If, immediately on arrest, the cops said the magic litany, they’d be able to gather so many more confessions and statements that they’d be able to use at trial. There would be more evidence, not less. This is no less true in the case of terrorist subjects than anyone else. The Times Square suspect seems to be a typical case, still talking happily long after being Mirandized.

This leads to the second point: There is no reason to Mirandize someone if you’re not going to use the statements at trial in the first place. Nothing prevents the gathering of intelligence for national security purposes when that intel is not going to be used at the trial of the guy who’s spilling the beans. Miranda doesn’t preclude the gathering of intelligence, it only precludes using stuff at trial.

So seriously, if the administration wants actionable intelligence they can use to hunt down terrorists in Pakistan, the Miranda rule is not stopping them. You want to find out who controlled the terrorist, who the other members of his cell were, where the money came from, who supplied the training and equipment, then go to it. You don’t need it for trial, all you need is the evidence of the crime. Hell, you don’t need his confession at all. Just proceed with the criminal case as if the guy had never confessed. Use his statements to prevent future attacks and build investigations against other people (who won’t have standing to object) and try him with all the other evidence you got.


What is the purpose of the Miranda rule, after all? It’s the same as the reason for the Fifth Amendment right against custodial self-incrimination. The only reason is to make sure the state doesn’t use its awesome power to override the free will of the individual, and force him to incriminate himself out of his own mouth.

If nobody’s forcing you to incriminate yourself, the law doesn’t care. It was your own free will, stupid as it may have been. But if you really do not want to say the words that will result in your punishment, then the state cannot extract those words by fear or intimidation or pain.

And when you’re in custody, you’re in an inherently intimidating situation. So the asking of any questions by the police when you’re in custody — or even raising an eyebrow or doing anything else likely to get an incriminating response — is unfairly taking advantage of the might of the state to force you to say the words against your will. Conceptually, it’s no different from Star Chamber or the Inquisition, and it’s what Americans have been dead set against from the get-go.

But note that this is the only thing we’re concerned with here. There’s no self-incrimination issue if your DNA is sampled for comparison to the DNA found at the scene, even if it convicts you. You weren’t actively convicting yourself, your free will was not involved, even if you objected to the DNA sampling itself. You weren’t providing facts out of your own mouth that you didn’t want to say. It’s not a Miranda issue.

And if someone else made statements that resulted in your conviction, it’s not an issue either. It wasn’t your free will being overridden, so you don’t get to complain about it, and you don’t get to have his statements suppressed. They can be used against you just fine (except of course for Bruton and other issues that aren’t really the point here).

So none of this is really the concern here when interrogating suspected terrorists. The point is not so much to gather evidence to use at trial — law enforcement already has it, or else they wouldn’t be interrogating the guy now. But there’s zero harm in simply reading the guy his right the instant he’s arrested, so when he does talk you can use it. Because he’s not going to decide not to talk just because you read him his rights.

We’re on the record already saying the Administration’s foolish for focusing on civilian criminal justice in dealing with foreign terrorists. But even if we agreed with that policy, we’d still have to conclude that they’re being extra-foolish here. It’s a bad idea.

Finally, don’t forget about all those unintended consequences that seem to happen more often than not. The Obama administration could wind up eroding the Miranda rule dramatically, by creating a precedent for carved-out exceptions via the Legislative branch. Something tells us that vote-hungry congressmen, always eager to look tough on crime, would jump at the precedent to take away even more of our Constitutional protections. It always seems like this happens most often as the result of good-intentioned administrations who ignore common sense in their rush to do “the right thing.”

So, like we said, this is just stupid. Holder’s wrong. Terrorism is no reason to relax Miranda/.

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6 Responses

  1. James says:

    So the basic issue here is the desire to keep the “terrorist” in the civilian judicial system. This is fool hardy. Any non-US citizen captured as a “terrorst” should be declared an illegal combatant and thus stripped of their US legal protections (and subject to any interrogation methods we desire to use on them).

    The Times Square Bomber should be tried for treason (potentially), and the Christmas Bomber should be declared an illegal combatant.

  2. Comment from a Facebook friend says:

    OK, so what you are saying is that the Obama Administration is so concerned about offending the liberal left by declaring terrorists “unlawful combatants,” (and therefore open to any kind of treatment we want to subject them to) or establishing military tribunals that they would rather decrease the overall legal protections for every American instead. Now that’s change you can believe in!

  3. Nathan says:

    Beware idealists and utopians. They start wars they cannot finish, and they will sacrifice your rights for their greater cause. Looks like we’ve had two in a row, now.

  4. Comment from a Facebook friend says:

    The funny thing is that a military tribunal would probably offer more legal protections for the “accused” than the civilian route (The UCMJ offers more protection than the civilian judicial system), it’s just that the penalties for being foung “guilty” would most likely be more severe. The liberal left just doesn’t like the military, period.

  5. Anonymous says:

    Terrific work!

  1. May 10, 2010

    […] This post was mentioned on Twitter by Nathaniel Burney. Nathaniel Burney said: The Criminal Lawyer: Holder's Wrong. Terrorism's No Reason to Relax Miranda – http://tinyurl.com/29qvw84 […]

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