HOLDER EYES MIRANDA CHANGES…. Attorney General Eric Holder raised quite a few eyebrows yesterday with some remarks about possible changes to the Miranda process, but without knowing what Holder has in mind, it’s hard to know what to make of his comments.
The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.
Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.
He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions.
But there’s already a court-approved public safety exception to Mirandizing, which the administration has already taken advantage of. Is Holder talking about codifying this existing flexibility more explicitly through legislation, or is he talking about a more substantive change from the status quo? He added, “If we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception. And that’s one of the things that I think we’re going to be reaching out to Congress to do: to come up with a proposal that is both constitutional but that is also relevant to our time and the threat that we now face.”
OK, but “modifying” how? By all accounts, the existing model seems to have proven itself successful. What kind of modifications are necessary? The AG didn’t say, exactly, and the devil is in the details.
For what it’s worth, talk of clarifying the public safety exception to Miranda isn’t exactly new. Adam Serwer noted this morning that FBI Special Agent and Minneapolis Chief Division Counsel Colleen Rowley wrote a memo to FBI Director Robert Muller on this point in 2002, and testified on the matter soon after before the Senate Judiciary Committee. The Republican-led Senate, for whatever reason, chose not to act.