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To Miranda or Not to Miranda?

by JENNIFER VAN BERGEN

Glenn Greenwald wrote last week that Miranda is “Obama’s latest victim,” explaining that “the Obama DOJ unveiled the latest — and one of the most significant — examples of its eagerness to assault the very legal values Obama vowed to protect.” Greenwald, of course, was referring to the “Miranda warnings.” The Wall Street Journal announced: “New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.”

Neither Greenwald nor the WSJ piece on which he relied, explain what the alleged “Obama DOJ” rules do exactly. However, the New York Times has posted the memorandum, which was issued as a “policy guidance” by the FBI jointly with the DOJ.

The memo, according to the New York Times, instructs “agents to interrogate suspected ‘operational terrorists’ about immediate threats to public safety without advising them of their Miranda rights to remain silent and to have an attorney present.”

Both newspaper articles and Greenwald’s column distort reality. It is remarkable that a former constitutional attorney and two major newspapers could get this wrong. This policy guidance doesn’t create a legal expansion of the exception to Miranda, nor is it an assault on established legal values. The most it can do is permit agents to interpret their duties more broadly.

Nor does it command agents to interrogate suspected terrorists about “immediate threats to public safety without advising them of their Miranda rights.” Again, the most it does is to permit further unwarned questioning within the outside limits of previous Miranda law.

These may appear to be fine legal distinctions, but those fine legal distinctions are what court decisions turn on. And rightfully so. Nobody wants brainless, broad stroke responses to suspected criminal activity. We want law enforcement to distinguish between situations where public safety is truly endangered, where someone’s life might be in danger or where a terrorist act might be prevented, and those where there is no genuine danger or emergency.

In fact, according to former Special Agent Coleen Rowley, leading up to and immediately after 9/11, the FBI erred on the wrong side of this equation, denying permission to interrogate a suspect in custody without Miranda warnings because they believed there was no (or no longer an) emergency! Airliners had just struck the World Trade Towers and the Pentagon and they didn’t think public safety continued to be endangered.

This FBI guidance memo is intended to finally remedy FBI agent reluctance to rely on the so-called public safety exception to Miranda. The real question is not whether Obama has assaulted legal values, but whether this guidance strikes the right balance.

I’m not an Obama defender. I think he’s done more than enough to undermine civil liberties and international law, but any constitutional lawyer or major news organ that thinks this memo is an assault on Miranda is either disingenuous or has failed to do his or its research adequately.

The memo addresses two issues. First, it reiterates an exception to Miranda that has been on the books for almost 30 years. This exception is called the Quarles or “public safety” exception. According to Rowley, this avenue was ignored by the FBI  immediately after 9/11 when she and her fellow agents “were prevented from even attempting to question Moussaoui on the day of the [9/11] attacks when, in theory, he could have possessed further information about other co-conspirators.”

The FBI guidance memo further states:

“There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.”

Thus, FBI agents may continue interrogation without warning in cases where such interrogation “is necessary to collect valuable and timely intelligence,” but they have to take the consequences. That means, agents must weigh intelligence collection against admissibility at trial. This merely recognizes that intelligence has other values than use at trial. It doesn’t change or undermine the Miranda rule.

Does this new guidance strike the right balance? I believe it does. Rowley has long argued that the existing public safety exception is sufficient to cover terrorism cases. Terrorism is, after all, a crime, too. If public safety is an issue in regular criminal cases, it is in terrorism cases, too, and the exception applies equally.

Rowley has also noted that if the Bush Administration had properly relied on the public safety exception, they would not have needed to go over to the “dark side” and engaged in torture. This is an important, often-missed point. The public safety exception doesn’t undermine or dilute Miranda protections; where applied appropriately, it actually protects us from having to go over to the dark side and do worse things to get information. Without any understanding of long-standing law, the Bush Administration failed to listen to the voices of career attorneys like Rowley. The present FBI guidance clearly takes established Miranda law into account.

But what about the second issue addressed in the FBI guidance memo? Conservative writer Benjamin Wittes states that this option – to continue an unwarned interrogation where intelligence not criminal prosecution was the object — “was always available to the bureau – as was exploiting the public safety exception.” And that is true. FBI agents always have had to make sometimes rapid decisions about whether interrogation is more necessary to collecting “valuable and timely intelligence” than to prosecuting the suspect, such that “they are willing to forgo using the statements against the suspect in court.”

Knee-jerk reactions against reasonable interpretations of the law do not help us. I am a strong civil libertarian but that doesn’t mean I don’t support the rule of law. If we really want to protect individual rights, we need to promote rational discussion and legitimate application of the laws, use of law enforcement, and intelligence gathering. The FBI/DOJ policy guidance memorandum strikes a fair balance.

JENNIFER VAN BERGEN, a former law lecturer at Anglo-American University in Prague and adjunct at the New School University, is an independent legal and historical scholar, investigative journalist, and book author. She is the founder of the 12th Generation Institute and is currently working on The Burr Project: Burr, Jefferson, & the Unspeakable. Her books can be found on Amazon and she may be reached at jennifer.vanbergen@gmail.com.

 

 

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