How long should we question a potential terrorist before upholding our Constitutional duties? This week Attorney General Eric Holder asked the same question while suggesting an exception to applying the Miranda warning. Though his appearance may appease the right, it is probably election year posturing, since such a “ticking time bomb” exception has already existed for decades.
Eric Holder, as a representative of the Obama Administration, called for a modification of the Miranda warning’s application to suspected terrorists, stating that the current law may be too rigid. This proposal would potentially allow law enforcement officials to interrogate someone suspected of terrorism without reading their Miranda rights if it is believed that they contain timely and possibly lethal information. Basically, if the lives of Americans are on the line, officials can delay the reading of a suspect’s rights. Sounds reasonable enough, right?
Not so fast. That rule already exists, and has even been approved by the Supreme Court. Informally called the “ticking time bomb rule,” the public safety exception allows officials to delay reading a criminal suspect his Constitutional rights if he has a “reasonable belief” that valuable information can be obtained. This exclusion also applies to everyday violent criminals, not just terrorists. Since 1984, Holder’s very concern regarding “flexibility” of the law has been addressed.
The Miranda warning was created by the Supreme Court in 1966 in an effort to protect uninformed criminal suspects. You’re probably familiar with it from Law and Order: “You have the right to remain silent. Anything you say can and will be used against you…,” etc. Police are required to read them to suspects prior to interrogation.
But Holder himself admitted that “the [Miranda] system we have in place has proven to be effective.” Faisal Shahzad, the Times Square Bomber, was eventually read his Constitutional rights, but chose to waive them. Despite being made aware of his rights, Shahzad remained compliant and continued to offer up information. The Christmas Day Bomber was also read his Miranda rights, and though he chose to remain silent afterward, the Feds were able gather incriminating information through the use of the public safety exception.
In both cases, interrogators questioned the suspects for hours and then, once they had gained enough information, read the suspects their constitutional rights. These two cases are prime examples of why the public safety exception works, not why it needs to be changed. In the hands of a trained interrogator, the public safety exception ensures that critical information and constitutional protections are not mutually exclusive.
So Holder, a strict believer of the Miranda warnings, did not question the efficacy of the constitutional system, but merely “whether we have the necessary flexibility.” Why?
Simple: election year politics.
Only three months ago, Holder fiercely defended his support of Miranda’s application to terrorists. With the limited information we have, it seems that Holder’s sudden reversal is not completely honest and should be understood in context. Six months out from midterm elections, in which Democrats lose scores of seats, the Obama administration is not willing to look soft on terrorism.
Republicans have long profited off of their “tough on terror” image at the expense of Democrats. By calling for the suspension of Miranda warnings for suspected terrorists, Republicans are able to reassert their credentials in a reasonable manner. Attempted terrorist attacks create such panic that Senators John McCain (formerly, the Maverick, and fierce opponent of torture) and Joe Lieberman (formerly, a Connecticut Democrat) were the loudest to shout for ignoring Miranda. Senator Lieberman has even introduced legislation permitting the stripping of Americans’ citizenship if they are accused (not convicted, but merely accused) of terrorism. These statements not only ignore the efficacy of the public safety exception; they threaten to make dangerous inroads on our Constitutional rights.
You know there’s a problem when the always incendiary Glenn Beck is the voice of reason. Glenn Beck, who once legitimized water boarding by comparing it to Jack Bauer’s 24, supported reading the Faisal Shahzad his Miranda warning, saying, “We don’t shred the Constitution when it is popular…We do the right thing.”
It is a shame to see such respected senators creating talking points out of an established and effective provision of the Supreme Court precedent. George Washington once referred to the Senate as a cooling saucer, meant to slow down the legislative process and limit the effects of fleeting radicalism. Sure, the House of Representatives may be susceptible to occasional fervor, but McCain and Lieberman are the elder statesmen meant to calm us down in times of panic. The last time we rushed to legislation in a time of fear, we were left holding the deeply flawed PATRIOT Act.
With Holder’s statement, the Obama administration has essentially called the Republican raise. It may have been the smart move politically, but that doesn’t make it the right one. All politicians like to harp on popular political issues leading up to elections, but Congress and the Obama Administration should be careful not to wade into the realm of constitutional rights.