WASHINGTON -- It's not often that I agree with Attorney General Eric
Holder. But, then again, it's not often that Holder publicly embraces an
anti-terrorism measure I proposed 48 hours earlier.
In last week's column, I suggested that the 1984 "public safety"
exception to issuing Miranda warnings be significantly modified for
terrorists such as confessed Times Square bomber Faisal Shahzad. Rather
than just allowing pre-Miranda questioning about any immediate danger,
the public safety exception should be expanded to allow full
interrogation of the outer limits of that attack, and any others being
plotted.
Two days later, Eric Holder said this on ABC: "If we are going to
have a system that is capable of dealing in a public safety context with
this new threat (international terrorism), I think we have to give
serious consideration to at least modifying that public safety
exception."
"The public safety exception," he told NBC, "was really based on a
robbery that occurred back in the '80s. ... We're now dealing with
international terrorists." Which is why we need to be "perhaps modifying
the rules that interrogators have" to be "more consistent with the
threat that we now face."
This shift, added Holder, "is, in fact, big news."
It is remarkable how base-pleasing civil-libertarian rhetoric, so
easily deployed when in opposition, becomes chastened when one is
entrusted with the safety of the American people. The fact that the
Times Square bomber did talk after he was Mirandized is blind luck.
Holder is undoubtedly aware of just how much information about the
Pakistani Taliban, which he now tells us funded and directed Shahzad's
attack, would have been lost to us had he stopped talking -- and
therefore how important it is to make sure the next guy we nab trying to
blow something up is not Mirandized until a full interrogation regarding
that plot and others is completed.
The liberals' problem with such interrogation begins with their
insistence that terrorists be treated as ordinary criminals rather than
enemy combatants. The administration treated Nigerian Umar Farouk
Abdulmutallab, the underwear bomber, that way, and appears to think it
was surely required to so treat Shahzad, a naturalized American.
Not at all. As The Washington Post noted in its editorial supporting
widening the government's interrogation prerogatives, the two relevant
precedents for designating enemy combatants are the Quirin and Hamdi
cases. In both, American citizens were subjected to military
jurisdiction.
Quirin (1942) allowed a U.S. citizen engaged in sabotage on U.S. soil
to be tried and convicted as an enemy combatant. Hamdi (2004) upheld the
designation as enemy combatant of a U.S. citizen picked up on the
battlefield in Afghanistan.
It is true that the Supreme Court has not recently ruled whether that
applies to a U.S. citizen apprehended committing an act of war on
American soil. But why not press the court to decide? After all, had
Shahzad's car bomb gone off, Times Square would indeed have been turned
into a battlefield.
Nonetheless, this administration seems intent upon using the civilian
legal system rather than designating caught-in-the-act terrorists as
enemy combatants. I think it's a mistake, but they will be in power for
almost three more years, possibly seven. In the interim, therefore, we
have to think about how to adapt this administration's preferred
domestic-judicial model to the real world.
The way to do it, as Holder has come to understand, is by modifying
Miranda.
The usual objection is that the courts will reject such a
modification. The 2000 Dickerson case is cited to suggest that the
Supreme Court will not countenance congressional intrusion on its
jurisdiction over constitutional protections against self-incrimination.
But what Dickerson struck down was a provocative congressional
attempt to simply overturn and liquidate Miranda. Expanding the public
safety exception would be no such affront. It would be acting on the
Supreme Court's own Miranda adaptation in Quarles (1984) -- the public
safety exception -- and applying its principles to the age of an ongoing
campaign of mass attacks upon civilians. Protection from that requires
information not just about ticking bombs but about future bombs.
The ACLU is predictably apoplectic about Holder's "big news." But the
idea is supported by an impeccably liberal attorney general, progressive
think tank king John Podesta and Republican Sen. Lindsey Graham (who is
working to draft such legislation) -- and that's not even counting us
troglodytes on the right.
Modernizing Miranda would garner widespread public support as well as
bipartisan congressional majorities. Go for it, Mr. Attorney General.