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This weekend Attorney General Holder and Obama Counterterrorism Advisor -- and former head of the National Counterterrorism Center under G.W. Bush -- John Brennan were hitting the Sunday shows floating an expanded exception to the requirement to read Miranda warnings to American citizens suspected of terrorism crimes, such as would-be Times Square bomber Faisal Shahzad.  

Giving Miranda warnings in custodial interrogation is a long-standing, workable process and is required to protect the Constitutional rights of all suspects. Miranda does not need a fix.

It is disheartening and unacceptable that we continue to buy into the paradigm that the established, fair, and practical U.S. justice system and constitutionally-sound, effective law enforcement techniques are somehow inadequate for a certain class of crimes.  Since when does the crime someone is accused of determine whether the Constitution is applicable?  

As many of you know, this is an issue close to my heart because of my involvement in the case of "American Taliban" John Walker Lindh.  Guess what happened before our government finally Mirandized him?  During the delay, he was tortured.

I wrote on the "modernizing Miranda" issue twice last week (here and here), when Holder was still stressing that Shahzad continued to cooperate after being read his Miranda rights.  

Holder's 180 on Miranda has to be the most absurd aspect of the new proposal. Up until this weekend, Holder was slamming down fear-mongering critics by noting that in Shahzad's case, federal officials used the existing - albeit controversial - public safety exception to interrogate Shahzad before reading him Miranda warnings, but that Shahzad continued to talk after being read Miranda warnings.  It is only after a few choice Congress people criticized reading Shahzad Miranda warnings--and Obama decided that he wanted a smooth confirmation hearing for Kagan--that Holder proposed expanding the exceptions to the Miranda rule.

It appears Holder has been drinking the "criminal justice system is inadequate to combat terrorism" Kool-Aid (or maybe just the "Democrats can't look weak on national security issues" Kool-Aid) and reading Dr. Krauthammer's Bill of Rights shredding argument that:

the very use of the civilian judicial system to interrogate terrorists is misconceived, even if they are, like Shahzad, (naturalized) American citizens.

(Scare parentheses around the word "naturalized" are Krauthammer's, not mine.)

Exceptions to Miranda are rare, and usually controversial, for a reason.  Miranda warnings are not just something fictional cops do on Law & Order. Mirandizing a suspect is a constitutionally-mandated practice required to preserve one of our most fundamental constitutional rights (the privilege against self-incrimination) and is often required to preserve a criminal case against a suspect.  Chief Justice Warren eloquently wrote when establishing the Miranda rule in 1966:

The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.

The privilege against self-incrimination is no less "fundamental to our system constitutional rule" today than it was in 1966, and yet Holder is willing exempt an entire group of suspects from Miranda protections based on the crime they are accused of.

This reaction to an attempted terrorist attack is sadly predictable.  The idea to "modernize" Miranda for an age of terrorism feels a lot like the process of "modernizing" the Foreign Intelligence Surveillance Act (FISA), which meant a systematic slicing of meaningful privacy and civil liberties protections in the name of national security, and ended in the privacy-invading FISA Amendments Act and immunity for the telecommunications companies that spied illegally on Americans. It is also that rather transparent slippery slope towards "special courts," military tribunals, CSRTs, and other lesser forums where the government has a distinct or total advantage.

These consistent, and often bipartisan, efforts to relegate terrorist suspects -- now even American citizens -- to a Constitutionally-inferior status in the name of national security are getting old.  If anything needs "modernizing," it is our predictable, anti-liberty reactions to terrorist threats.

More information is available on the Government Accountability Project website

Originally posted to Jesselyn Radack on Mon May 10, 2010 at 06:34 AM PDT.

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