Miranda mirage

“We now find ourselves in 2010 dealing with very complicated terrorism matters. Those are certainly the things that have occupied much of my time. And we think that with regard to that small sliver — only terrorism-related matters, not in any other way, just terrorism cases — that modernizing, clarifying, making more flexible the use of the public safety exception (of the Miranda law) would be something beneficial.” —Attorney General Eric Holder

Did any of you well-intentioned Obama supporters breathe a sigh of relief when you voted a constitutional lawyer into the office of the presidency? Whoops.

Last week, the Obama administration began discussing minor changes to the Miranda law, which requires law enforcement to remind accused criminals of their Fifth and Sixth Amendment rights, namely the right to not incriminate themselves, or the right to at least have a lawyer around when they do it. Additionally, the administration is looking for a little elbow room to extend the amount of time a terror suspect can be held and interrogated before being presented before a judge, formally accused of a crime, and assigned a lawyer.

Oddly enough, authorities have had the legal right to do these things under the “public safety exception” to Miranda since 1984. It says, basically, that if authorities determine public safety to be in immediate danger, a suspect may be interrogated without being read their Miranda Rights, that their testimony in that time is admissible as evidence, and that they can be held without a formal arraignment for up to 48 hours.

It works pretty well just the way it is. The public safety exception was rightfully employed recently when Faisal Shahzad was arrested after he failed to blow up his Nissan in Times Square. When the Feds found the guy, he started singing like a canary before they could get cuffs on him. They determined there was an immediate risk of further terrorist acts and held him for questioning, reading his Miranda Rights later, at which point he waived his rights and kept right on talking.

“Well what if he had stopped talking once he was read his rights, isn’t that a good reason to not tell him he has any?”

It’s this little gem of hypothetical stupidity that compelled the administration to start playing grab-ass with the Bill of Rights last week. It assumes your average terror suspect is a Tickle Me Elmo doll full of national security information and that he will keep on talking until he’s read his rights, at which point the batteries fall out of his ass.

A suspect doesn’t have to be told he has the right to remain silent to be silent. Some folks are just naturally quiet. But sometimes people in positions of power do have to be reminded that it’s still illegal to coerce suspects into testifying against themselves. Miranda was designed as a point of reference for the suspect and the authorities both.

The biggest problem, in my mind, is that the word “terrorism” is an abstract noun, and that the crime of terrorism may still prove to be most dangerous in its ambiguity. Trying to blow something up in Manhattan, or even in your trousers, will land you in a little room with some unpleasant fellows, and for good reason. But the potential for the charge of terrorism to become broader instead of more focused is of utmost concern. Could protesting be considered terrorism? Would any of you be surprised if someday the answer turned out to be yes?

Maybe the Justice Department wants to clear up the ambiguity and make some concrete distinctions about these ideas. I hope that’s the case. What is worrisome, though, is that the constant erosion of civil liberties in this country over the last decade is becoming the status quo.

When you reduce the discussion in its current state to essential elements, what Holder and Obama are petitioning Congress for is a formalization and further expansion of the law such that anyone suspected of terrorism could be held without due process for an undetermined length of time and interrogated without a lawyer present. I’ve read the previous sentence a dozen times. I think it’s an accurate description, and it scares the shit out of me.

At least the president closed Guantanamo like he said he would … Oh, whoops.

Now for some relaxing hyperbole therapy: Close your eyes, breathe deeply and slowly repeat after me … “Kaaafka … Orrrrwell … Kaaafka … Orrrrwell …”