Yesterday I argued that recent events have brought into focus what we should have known before: Miranda is a period piece. It was in step with the liberal excesses of the 1960's, but has become an anachronism, and a dangerous one at that. Over the past 44 years, its benefits in curbing the sometimes abusive police behavior of its time have dimmed, while its costs, in inviting dangerous suspects to stonewall, have increased. Nowhere is this more obvious than in our current conundrums about when or whether terror suspects like the Times Square bomber should be given the famous warnings or, if not, how long the warnings should be delayed.
Today former Attorney General Michael Mukasey chimes in. Here are the first paragraphs of his piece this morning in the Wall Street Journal:
Some good news from the attempted car bombing in Times Square on May 1 is that--at the relatively small cost of disappointment to Broadway theater-goers--it teaches valuable lessons to help deal with Islamist terrorism. The bad news is that those lessons should already have been learned.
One such lesson has to do with intelligence gathering. Because our enemies in this struggle do not occupy a particular country or location, intelligence is our only tool for frustrating their plans and locating and targeting their leaders. But as was the case with Umar Faruk Abdulmutallab, who tried to detonate a bomb aboard an airplane over Detroit last Christmas Day, principal emphasis was placed on assuring that any statements Faisal Shahzad made could be used against him rather than simply designating him an unlawful enemy combatant and assuring that we obtained and exploited any information he had.
On Sunday, Attorney General Eric Holder said that in regard to terrorism investigations he supports "modifying" the Miranda law that requires law enforcement officials to inform suspects of their rights to silence and counsel. But his approach--extension of the "public safety exemption" to terror investigations--is both parsimonious and problematic. The public safety exemption allows a delay in Miranda warnings until an imminent threat to public safety--e.g., a loaded gun somewhere in a public place that might be found by a child--has been neutralized. In terror cases it is impossible to determine when all necessary intelligence, which in any event might not relate to an imminent threat, has been learned.
Read Mukasey's entire essay here.