Holder: Let's "Modify" Miranda, Weaken It

I awoke this morning to Eric Holder's concession on ABC about "modifying" Miranda in terrorism cases. I am really unhappy that the Administration is willing to give ground on this Constitutional principle, especially when in the most recent terror case the Pathfinder Bomber, who was twice given his Miranda warnings, is being such a conversationalist with the authorities.

An attack on Miranda, a precedent that has weathered 42 turbulent years, even a concession as mild as Holder made today, is usually an offering to certain kinds of voters, voters who are afraid, who are "law and order," who are ready to sacrifice the Constitution for "safety." So I see today's remarks as a dog whistle. But I don't know why Holder is calling these particular stray dogs.

Apparently, the Attorney General had this to say:

"The [Miranda] system we have in place has proven to be effective," Holder told host Jake Tapper. "I think we also want to look and determine whether we have the necessary flexibility -- whether we have a system that deals with situations that agents now confront. ... We're now dealing with international terrorism. ... I think we have to give serious consideration to at least modifying that public-safety exception [to the Miranda protections]. And that's one of the things that I think we're going to be reaching out to Congress, to come up with a proposal that is both constitutional, but that is also relevant to our times and the threats that we now face."

So, in response to Republican screams that the Pathfinder Bomber, who parenthetically is talking and confessing his brains out as I write, shouldn't have been given Miranda warnings, the AG is agreeing. This is tough to understand. Instead of pointing out that Miranda didn't hurt anything in this case and in many others, and in fact, there is no case where giving Miranda seems to have hurt a terrorism investigation, the Attorney General is offering some red meat to the howling canines.

If you think about Miranda and terrorism, there are some obvious points that seem to have been missed. First, Miranda has been on television around the world numerous times daily since 1968, when the decision was announced. You can probably recite most of the warning from memory. We all know that it applies when someone in custody is being questioned by cops. Do we really think that after all this time terrorists, whether or not they are read the Miranda warnings from a crumpled, little yellow card, don't know they have a right to remain silent? That they've not been told that there is Miranda if you get arrested in the US? So that reading them their rights will be a revelation to them and spur them to sudden silence?

And what if you don't give warnings, what happens then? Then the police aren't allowed to use the confession in their direct case at the trial of the person who didn't get warnings. It doesn't stop them from using the evidence you give against somebody else. It doesn't stop them from trying the person they are questioning. It just stops the use of the confession. That's suppressed. Just that. And everything that they derive from that about the accused. Does that ruin the case? Maybe. Maybe not. But giving Miranda is not equivalent to finding the accused not guilty. Far from it.

Even more preposterous in today's concession is the lack of history brought to the table.

In 1968, two years after the Miranda decision, Congress passed a law that purported to overrule it. This statute, 18 U.S.C. § 3501, directed federal trial judges to admit statements of criminal defendants if they were made voluntarily, without regard to whether he had received the Miranda warnings. Under § 3501, voluntariness depended on such things as (1) the time between arrest and arraignment, (2) whether the defendant knew the crime for which he had been arrested, (3) whether he had been told that he did not have to talk to the police and that any statement could be used against him, (4) whether the defendant knew prior to questioning that he had the right to the assistance of counsel, and (5) whether he actually had the assistance of counsel during questioning. But the "presence or absence of any of" these factors "need not be conclusive on the issue of voluntariness of the confession." Because § 3501 was an act of Congress, it applied only to federal criminal proceedings and criminal proceedings in the District of Columbia.

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And in Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court held the requirement that the Miranda warning be read to federal criminal suspects, and struck down this federal statute that purported to overrule Miranda v. Arizona in a 7-2 decision written by Rehnquist with Scalia and Thomas dissenting. So, to make a long story short, a decade ago the question of whether Congress could modify or overrule Miranda was already dead letter.

Sure, that was before 9/11. Sure, the Court has changed. Sure, the original majority in Dickerson has left the Court. But there is no case in the pipeline that even tangentially approaches the issue. Because there is no such legislation. Holder's remarks aren't about a repeal or modification of Miranda by the Court. They're directed toward an eventual statute that will seek to modify Miranda.

Holder's remarks are a sop for the whining republicans. And their perceived constituencies. These remarks are directed exclusively at the extremely fearful, those who are ready to give up Constitutional rights for their perception of their safety, who might think at some future time that the administration is "soft on terrorism." That's just pitiful.