Since coming into office the Obama administration has insisted on approaching all terrorist attacks as a law-enforcement-only problem. For purely ideological reasons, Attorney General Eric Holder has refused to learn what the rest of the country already learned from the 1990s and 9/11: that this unconventional enemy requires the government to use all lawful tools at its disposal, including holding some terrorists captured in the U.S. as enemy combatants.
But now that he is in power and has some actual responsibility, Holder is beginning to learn the limits of the law-enforcement only approach. Unfortunately he has decided to change our law enforcement system to fit the fight against terror instead of treating it as the war that it is.
So this past Sunday, and again yesterday, Holder said we needed to “update” our Miranda warning rules to deal with “with international terrorism.” This is not only unwise but also most likely unconstitutional.
The Miranda warnings that law enforcement officials are required to read a suspect once he is taken into custody are court-created extensions of our 5th Amendment Constitutional rights. If law enforcement forget or intentionally choose not to read the suspect his Miranda warnings, then the government usually cannot use those un-Mirandized statements at trial. Behind the government’s use of Miranda is an underlying assumption: The case is going to trial, and the government wants to preserve the possibility of using the defendant’s statements against him in its case. Thus, Miranda is a trial tool—not a national security tool.
Courts have also created a “public safety exception” but after the Christmas Day Bomber and now the Times Square Bomber, Holder has discovered that this exception is not enough to properly protect the country. So now he wants a legislative change to our criminal justice system. But Miranda is a court-created Constitutional doctrine. It would be unconstitutional for Congress to change it.
There is an existing constitutional way to protect our country: Congress’s Authorization for Use of Military Force and subsequent court cases allow the President to designate appropriate terrorist suspects captured in the U.S. as enemy combatants (at first) and interrogating them at length without Miranda or an attorney.
Preserving the Miranda-less interrogation option does not preclude the government, after appropriate interrogation, from then deciding to send the suspect to trial in federal court or a military commission.
Heritage Foundation Senior Legal Fellow Cully Stimson writes:
After 9/11, the White House rightly shifted the focus of counterterrorism operations from investigating attacks to preventing them. By being more concerned about safeguarding the opportunity to prosecute suspects than stopping terrorist plots, Holder is returning to the wrong-headed strategy that characterized this nation’s pre-9/11 approach to fighting terrorism. The Attorney General has forgotten that intelligence gathering, at the outset of capture, is more important than preparing for a trial.
