I don’t usually play the Imagine-if-a-Republican-had-said-it game, because frankly it’s usually just too obvious. But occasionally something really stands out: Can you imagine the outcry if a Republican had proposed revising Miranda?!
Attorney General Eric Holder said that Congress should “give serious consideration” to updating the Miranda warning which requires law enforcement officials to inform suspects of their rights – including the right to remain silent.
In an interview on “This Week,” Holder said that the U.S. needs to exam whether the current rules regarding Miranda warnings give law enforcement agents the “necessary flexibility” when dealing with terrorism cases.
Holder’s proposal is both right and wrong. I think it’s right to revise Miranda, because it goes much too far. For example, under Miranda, if you fail to read a suspect his rights, it’s assumed he doesn’t know them and any questioning is assumed coercive, even if that suspect is, say, a criminal law professor. That’s just silly.
But that’s an argument for revising Miranda in general. Revising it in the manner that Holder seems to be proposing is a very bad idea. Law enforcement personnel should not be able to set aside constitutional rights (and that’s what we’re assuming Miranda is, if we aren’t willing to revise it in general) in certain sorts of cases. That’s the sort of reasoning we see in the UK, where Parliament has been whittling away citizens’ rights to the point where they have hardly any left.
We can obtain the information we need while protecting the integrity of law enforcement by recognizing that there are two different sorts of agents: law enforcement and intelligence. Law enforcement abides by rules to ensure that the rights of suspects in civilian court are not violated. Intelligence obtains the information we need to protect the country, but that information might not be admissible in civilian court.
When the terrorist in question is a US citizen (such as Shahzad), there are still some problems, to be sure. These are matters that Congress needs to take seriously and try to craft a solution to. One idea would be to establish a “Chinese wall” between intelligence and law enforcement in such cases to prevent the proceeds of interrogation from tainting a prosecution. But we have to concede that we might sometimes have to forgo prosecution in order to protect innocent lives.
Unfortunately, the Obama administration can’t contemplate a course such as this, because they are fully invested in applying the law enforcement paradigm to terror cases. Holder’s own proposal implicitly acknowledges that the law enforcement approach is inappropriate for terror cases, but unfortunately he is compounding the problem by compromising the integrity of law enforcement rather than reversing his fundamental error.