<< News Scan | Main | Photo Finish for Wisc. Supreme Ct. -- Update >>

Right Result, Wrong Process on Miranda


A couple of weeks ago, I wrote that Congress should take a hand in revising Miranda rules to allow extended interrogation of terror suspects without Miranda warnings.  Simply changing Miranda's requirements by DOJ fiat would arrogate excess power to the executive branch, and is almost surely illegal in light of Dickerson v. United States.  In Dickerson, the Court held that since its own improvised Miranda rule was "rooted" in the Constitution, the elected branches had no authority to modify it.  Only the Court could modify it  --  as it had done, for example, in New York v. Quarles, 467 U.S. 649 (1984).

The Washington Post today editorializes that there should indeed be a relaxation of Miranda for terror interrogations; that the elected branches should compose the new rules; and, wisely, that those rules  should "allow a suspect to be questioned for a matter of days, rather than hours."  The Post adds that "this added measure of flexibility would come with a requirement that a federal judge be informed that the suspect was being questioned to ensure that the more malleable standards were not being abused."

This seems like a mostly sound proposal on its merits.  The problem is that it overlooks Dickerson, which would have to be overruled or significantly modified for the Post's suggestion to work.

Theoretically, of course, it's possible that the Post simply didn't know about Dickerson  --  but only theoretically.  In fact, at the time Dickerson was pending, the Post editorialized in favor of the obtuse result the Court reached, putting Miranda beyond the reach of democratic processes.  Beyond that, last week I submitted to the Post an op-ed suggesting largely the same changes to Miranda it endorsed today, but explicitly addressing the Dickerson problem and suggesting how it could be confronted.

If the Post didn't want to publish the op-ed, fine.  It's their paper, not mine.  But in order for its suggestion today to work, both it and the Court are going to have to eat a little Dickerson crow.  It won't be a tasty dish, but winning the intelligence war against al Qaeda is more important than optimal digestion. 

Leave a comment

Monthly Archives