Our national debate now features the clash between two urgent forces. One is the need to obtain timely intelligence to prevent mass murder at the hands of terrorists. Three times in President Obama's brief tenure, there have been terrorist strikes on American soil: the Hassan massacre at Ft. Hood, the Christmas Day airline bomber in Detroit, and the Times Square bomber. In the first of these, 13 people met their fate. In the latter two, we got lucky. But luck is no substitute for a national security policy. And luck doesn't hold forever.
The second force, which we created, is the force of legal precedent that essentially invites captured killers and would-be killers -- terrorists and others -- to clam up. This is the 1966 Miranda decision. Miranda requires the police to tell suspects in custody that they have the right to remain silent and to the services of an attorney during questioning. This is a virtual invitation to stonewall. Every now and again, the suspect will decide to talk anyway. But banking on that serendipity is foolhardy. If the authorities violate Miranda, the suspect's statement is automatically suppressed, even if voluntarily given, seriously complicating the chances of obtaining a deserved conviction.
In recent days, the Attorney General has pointed out that there is an "emergency exception" to the Miranda rule, one that allows the police to question a suspect when public safety is in immediate danger. Apparently, the roughly three hour-long unMirandized questioning of the Times Square bomber was undertaken in the hope that the courts will see fit to apply this exception. Maybe they will, but it's hardly a sure thing. In the case in which the exception was created, New York v. Quarles, 467 U.S. 649 (1984), the unMirandized questioning lasted less than a minute. Again, the Administration appears to be banking on a combination of (1) hope and (2) the good sense of people more serious than it is.
That is irresponsible as a matter of security policy and mistaken as a matter of Constitutional law. Following the break, I describe what needs to be done.
The only sensible option is to overhaul Miranda. A more sober Congress than the one we have now attempted to do so in 1968, when it adopted a statute, 18 USC 3501, that would have restored the voluntariness inquiry as the touchstone of admissibility, although with added protections for the defendant.
Section 3501, however, never got off the ground, and was effectively nullified by the Supreme Court's decision in Dickerson v. United States, 530 U.S. 428 (2000). Dickerson held that Miranda was "rooted" in the Constitution and therefore could not be overturned merely by an Act of Congress.
Dickerson's holding was wrong. It is of no moment that Miranda is "rooted" in the Constitution. One would, after all, hope that Supreme Court rulings are, at the minimum, so rooted. The only relevant question is whether Miranda warnings are required by the Constitution, and of course they are not. What the Fifth Amendment requires is that the police refrain from taking a statement that is compelled, not one that is merely unwarned. The assumption that an unwarned statement is ipso facto compelled is simply false, and of course is nowhere to be found in the Constitution or the history of its drafting. Sometimes an unwarned statement will turn out to be compelled, to be sure, and the rendition of warnings makes compulsion less likely to be the cause of the suspect's decision to speak. But the assumption that an unwarned statement is necessarily a compelled one is preposterous.
The Miranda Court made that assumption because of its deep distrust of the police and police interrogation tactics; one cannot read the decision and come to any other conclusion. But Miranda is 44 years old. No serious person can fail to appreciate the significant enhancement in police professionalism over these last two generations. Of course there are still occasional abuses -- many of them given extensive coverage. But standard operating procedure for police questioning is vastly more civilized and rule-bound than it was two generations ago. Miranda may have been well-adapted to its time (although the four dissenters thought otherwise). But times have changed.
In a way, Miranda is the victim of its own successes, and it is nonsensical to make the public, in the age of Times Square terror, the continuing victim of its shortcomings. It was designed to modify police behavior and it worked. Miranda had costs -- as the suppression of probative evidence always has costs, to the truth and to public safety. It once might have been plausible to think that it was worth the costs, steep though they often were. But it has become an anachronism -- an artifact of the sixties that, like lava lamps and love beads, seemed an apt fit for its time. But it is not an apt fit for ours. It's too rigid. Its intent remains worthy, but its one-size-fits-all, automatic exclusionary rule exacts too high a price.
We see now more clearly than 40 or 50 years ago the need for greater flexibility in police interrogations. The war on terror is a war for intelligence; indeed, our failure to have advance warning of the attacks in Ft. Hood, Detroit and Manhattan was an intelligence failure. The day is coming when the confines of Miranda, the slender and untested Quarles exception notwithstanding, will truncate what we can ask and what we can expect for answers. The answers we don't get are going to cost lives, hundreds of them or maybe thousands.
This is not the world of 1966. It's the next millenium, and nine years after we got a ghastly preview of what not knowing costs. Not knowing is something we can no longer afford, and not knowing because of invited stonewalling, via a nostalgic but no longer sensible application of Miranda, is a scandal.
We need something more than the fragile reed of Quarles's lone "emergency exception" to bail us out. We have been through three terror attacks in this country in the last seven months. It is not a single emergency, here today and gone tomorrow. It's the mother of all emergencies, and it's going to be with us for a while. It's not what we wanted or sought. But it's what we have.
It is time for a more nuanced Supreme Court to revisit Miranda, and past time for the Justice Department to demand that it do so. If the Administration or the Court will not act, Congress will have to. But that is for a future post.