This editorial will appear in tomorrow’s print edition.
Somebody in the White House should have winced Sunday when Attorney General Eric Holder raised the possibility of more Miranda-less questioning of terror suspects.
“We’re now dealing with international terrorism,” he said about the attempted Times Square bombing, describing it as a “new threat.” The “now” and “new” suggest that that the bomber’s apparent Taliban connection was a big surprise that has suddenly required the Obama administration to rethink how it handles suspects.
Let’s hope Holder and others in the administration weren’t caught that flat-footed. There’s nothing remotely new about international terrorism; the World Trade Center was first bombed in 1993, and the likes of al-Qaida have been targeting the United States ever since.
The supposed novelty of an international attack has at least given the Obama administration a pretext for re-examining its overly rigid practice of reading Miranda rights almost immediately to suspected terrorists arrested on American soil.
This conventional police approach is clearly a reaction to abuses of the Bush era. It’s also an overreaction.
Delaying a Miranda warning or questioning someone as an enemy combatant, by themselves, are not the same as torture or extraordinary rendition. Extended questioning without a warning can be done within the law. There’s also room to legally expand the practice, as Holder seemed to be conceding.
Warning a suspect that he has the right to remain silent helps assure that what he says thereafter can be used in court by the prosecution. If other evidence is overwhelming – as when explosives are found on a man who tried to detonate them on an airplane – the suspect’s statements may not be needed for a conviction. Why tell him he can shut up when he might otherwise provide precious intelligence?
The long-established “public safety” exception to Miranda allows investigators to press suspects for information to avert an immediate threat. Nobody has defined just how long someone can be questioned under that exception; Holder is presumably thinking about asking Congress – and ultimately the Supreme Court – to provide a clear rule for questioners. That’s a good idea.
How about cases when the immediate threat is over but a suspect appears to know things that could help stop future terror attacks? The Supreme Court has already ruled that even an American citizen can be detained as an enemy combatant. With enough safeguards, including judicial oversight, extended detention and Miranda-less questioning could be justified in some circumstances. The safeguards must include a ban on torture, and Congress ought to define the limits.
The Obama administration has been lucky. The last two terror attacks – on Times Square and a Detroit-bound jet – were botched. Not only that, the men accused of carrying them out wound up speaking freely to investigators even after they got their Miranda warnings.
The country may not be so lucky next time.