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Eric Holder's Tinkering With Miranda Rights Is Dangerous Political Theater

Passing a law to add an emergency "public safety" exception to Miranda warnings would further erode our core civil liberties for the sake of cheap political point-scoring.

Lost against the predictable hubbub about the predictable Kagan nomination, Attorney General Eric Holder announced last week that he will ask Congress to cut back on a decades-old constitutional protection for criminal suspects. He wants Congress to legislate an emergency "public safety" exception to the Miranda warnings that are given by police to suspects upon arrest to inform them of their constitutional rights. With some sharp liberal commentators endorsing the proposal, should progressives tone down their usual opposition to limits on criminal suspects' rights?

Not so fast. There is more to the Holder proposal than meets the eye. On the one hand, the proposal is likely to have little effect on the ground. But it is disturbing as a political concession. It is an admission that former Bush administration officials' framing of the debate over terrorism -- in which core constitutional rights are eroded without tangible gains in security -- continues to determine what's politically feasible today. Accepting this frame may be the path of least resistance today. But it robs the Obama White House of a durable, defensible position on civil liberties tomorrow, and thus invites the deepening erosion of our core civil liberties as a side effect of political point-scoring.

To understand the Holder proposal, it's helpful to know more about the Mirandawarnings that police since 1966 have had to read suspects before questioning. The Supreme Court first demanded Miranda warnings as a way to protect suspects against police coercion that violated the Fifth Amendment right against self-incrimination. Until 1966, courts made case-by-case determinations of whether police had coerced suspects into false confessions. In the three decades before Miranda, two-thirds of the cases before the High Court involved the death penalty. Many came from the Jim Crow South. Yet because of the secrecy around the interrogation room, judges were placed in the impossible bind -- being asked to weigh the testimony of (often black) suspects against that of many (almost always white) cops, without knowing whether the suspect's testimony had been coerced. The result was massive underenforcement of the Fifth Amendment. 

Miranda was supposed to fix that by ensuring that suspects could seek a lawyer before interrogation. Despite years of bitter tirades from police and politicians, the Miranda warnings stuck. In 2000, a seven-justice majority of the High Court, with then-Chief Justice Rehnquist writing, rejected as unconstitutional a federal statute seeking to replace Miranda warnings with the old all-things-considered test.

Holder and his supporters want the law to define by statute an emergency "public safety" exception. As they note, the Supreme Court in 1984 recognized an emergency exception to Miranda when "public safety" demands. But the so-called Quarles public-safety exception, they explain, focused on ordinary crime. The Quarles Court gave little guidance on how to deal with terrorism. And lower federal courts today are divided on now imminent a risk must be for the public-safety exception to apply. The Holder proposal, it is claimed, would bring clarity because, even if the law were challenged, the justices would defer to Congress's expertise and wisdom.

This logic is comforting but unsound. The first problem is that Miranda is a constitutional rule. The Court in 2000 was clear that it, not Congress, had the last word about its meaning. Even if Congress speaks today on exceptions to Miranda, the Court must still weigh in. Even if Congress passes a statute that allows FBI agents more leeway for "emergency" questioning, agents cannot be certain "un-Mirandized" confessions will not be thrown out in the courts. 

Equally problematic is the premise, peddled by Representative Peter Hoekstra and others, that Miranda rights stop interrogations and thus pose a risk to security.  Miranda's critics skate over the fact that the decision does not in fact ever prohibit questioning: It rather directs that interrogations without Miranda warnings cannot be introduced at trial in the prosecutor's central case. Critics who imply that Miranda stops questioning altogether are simply fibbing. If law enforcement chooses to keep questioning without a lawyer, Miranda doesn't stop them, even if it does direct courts down the road not to accept the resulting evidence.