In our latest episode of ConLaw Obama is to Civil Liberties what MBA Bush was to the Economy, we’ve been learning the past few days that Eric “Midnight Pardons” Holder is invoking a “public safety exception” to Miranda rights that allows agents to question suspected terrorists for a few hours before letting on that they don’t have to talk. (They’re talking afterwards anyway, but we’ll let Liz Cheney lie about that one.)
We’ll get to the details in a moment, but the exception is based on a 1984 Supreme Court ruling that Holder has been artfully interpreting. Under the ruling, if there’s an immediate danger to address, you can wait a moment before pulling out the Miranda card. Holder waited more than a few moments in the cases of the Underwear Bomber and the Times Square Nickname Pending, and now he wants to formalize his improvisation:
The public safety exception was really based on a robbery that occurred back in the ’80s and something to do with a supermarket. We’re now dealing with international terrorists, and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face.
Because, as they say, two failed bombings changed everything.
Of course, we understand what Holder’s getting at. Both Miranda and its exception were based on everyday cop-show crimes. Here we’re facing potential networks of violent crime, something we’ve never seen before. Unless you count the Mafia. Or gangs. Or the Weathermen.
But since we’re stuck with the issue this week, let’s ground ourselves before the abstractions start hitting the fan.
The subject of the Miranda decision was coerced confessions. And not just the highly entertaining Jack Bauer method of shooting thighs. Confessions stemming from the textbook method of locking someone in a room until he squealed were equally suspect. Earl Warren took the Fifth Amendment very seriously: your Constitutional right not to incriminate yourself required good-faith protection.
But Warren didn’t pull the cop-show catechism out of his arse: He copped it from the FBI — Hoover’s FBI, mind you — where it had been standard procedure for years. In popular terms, Efrem Zimbalist, Jr., knew the lines long before Jack Webb did.
As history would mischievously have it, it was William Rehnquist who presided over New York v. Quarles, the 1984 decision that carves out the “public safety” exception which Holder is driving a truck through. And while Rehnquist all but sneers at the “doctrinal” Miranda rules — he refers to the Fifth Amendment as a “privilege” — he’s careful not to undermine them.
Rehnquist’s “narrow exception” is just that. After NYC cops had cuffed a suspect at a crime scene, they noticed that his holster was empty. Where’s the gun? they asked. Over there, he said. The cops found the gun, read the dude his rights, and then asked him whether he owned it. Rehnquist was cool with the sequence, and we see no reason to disagree. We’re a long way from the cases that disturbed Warren:
We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.
(Note to Teabaggers: You won’t find better statist language than that. We may agree with Rehnquist’s decision, but his framing sucks.)
Just to underline the point, Rehnquist repeats it:
The exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.
The facts of this case clearly demonstrate that distinction and an officer’s ability to recognize it.
To be anachronistic about it, Rehnquist was addressing a real ticking time bomb: Not the apocalyptic fantasies of soon-expiring television programs, but the practical challenges of everyday street crime. He may have mocked and misunderstood Warren’s concerns (as well as the Constitution itself), but he let Warren’s principle stand.
The point of the Bill of
Privileges Rights in general, and the Fifth Amendment in particular, is to protect the individual from the state — a state that, in our nation’s history and especially recently, has been all too willing to trample those rights in the name of (but not the exercise of) public safety. As this week’s debate heats up, bear in mind that we can’t always trust the good faith of players in the Executive Branch. And for some folks, that includes the current team.
Miranda v. Arizona [Cornell]
New York v. Quarles [Justia]