More on Miranda rights and terrorism

A friend writes regarding my post this past weekend on Miranda rights and terror suspects. My response is interwoven with his comments:

I disagree with your Miranda post.

As a preliminary matter, you vastly underestimate the degree to which injecting a lawyer into an interrogation changes its dynamics. First, a lawyer's first instruction to his or her client--even if the lawyer plans to advise the client to cooperate--is to stop talking. Generally, the lawyer will then sit down with the client, figure out how much information the client has, in order to then plan a negotiating/proffer session with prosecutors. This wastes valuable time, and it tends to make any proffered information less valuable. This is a critical point, and indeed there is already an exception to the Miranda rule for public safety.

Second, giving a lawyer to a suspect inherently changes the power dynamics of the situation. All of a sudden, the suspect feels less vulnerable, more powerful, and this perhaps makes him less likely to volunteer helpful information about other terrorists. This second point is part of what Miranda is supposed to prevent. But, in this type of situation, Miranda is over inclusive. Miranda's purpose, as you mention in your post, is to protect against coerced confessions. By completely changing the power dynamic of an interrogation, however, it not only tends to prevent inculpatory statements, it also prevents law enforcement from quickly obtaining information that might lead to the apprehension of other terrorists.

I think that this overstating the degree to which timeliness is critical in these cases. Sure, in some cases, we're going to want information immediately in the proverbial "ticking time bomb" situation, or to try to roll up a terrorist network before it gets wind of an arrest. We've already got the public safety exception to Miranda for that. Beyond those situations, I don't see a need for expanding the public safety exception for terrorists, because a decent attorney is also going to know that there's a limited shelf-life to the defendant's useful information, and push for quick disclosure lest the information become stale and worthless as a bargaining chip.

Unfortunately, over time Miranda has come to be perceived as a good in itself--a shibboleth of sorts. But remember that Miranda is only a prophylactic rule for judicial efficiency. Prior to Miranda, court's had too much difficultly determining whether a particular inculpatory statement was truly voluntary. So, for the sake of efficiency, the Supreme Court came up with Miranda: Unless a suspect is informed of his or her rights, courts will presume that the statement was coerced. Obviously, investigators can elicit information from suspects without the interrogation necessarily being coercive. Furthermore, even without the Miranda rule, courts would continue to engage in a case-by-case analysis of whether a particular inculpatory statement was truly voluntary or whether it was coerced.

Looking at my post, I see that I've made the mistake of conflating Miranda with the substantive underlying rights - which is something that I've criticized of others in the past. My point was not so much to idolize the Miranda warning itself, but to try to push back against erosions of the 5th and 6th amendment protections for defendants, which I think are the actual targets when people complain about Miranda. I've read that the Miranda warnings themselves have been empirically shown to not be terribly useful, because anybody who actually understands the underlying rights asks for those rights anyway ("I wanna see my lawyer"), and people who don't understand that they have a real right not to incriminate themselves or a right to ask for an attorney typically don't internalize those rights from the brief speech read off the back of a card from a cop's wallet. What is vitally important is that we not coerce confessions or inculpatory statements from the innocent. This is especially critical in terrorism cases, where an inadvertant or coerced (false) inculpatory statement can lead the suspect, particularly if he is not a citizen, into the legal netherworld of Gitmo, military tribunals, etc.

Therefore, you can see this being a win-win. On the one hand, investigators would be freed from having to read terror suspects their Miranda rights (thus eliminating the risk that the suspect will clam up, wasting valuable time), but, on the other hand, courts would continue making case-by-case determinations about the admissibility of particular inculpatory statements, protecting the terror suspect from improper coercive measures.

Finally, and most important perhaps, there's the political point. Unless us liberals can show that the criminal justice system is flexible enough to handle terror suspects and successfully (but not coercively) elicit information from them about other terrorists, we will continue to be beaten by the radicals, like Giuliani and Cheney, who want terror suspects--including American citizens--declared enemy combatants and water-boarded. So, ultimately, if the public safety exception to the Miranda rule needs to expanded (with legislative approval) in order to save the public's perception that the judicial system can handle terror suspects, I think that's the proper course.

I disagree with this. I think that the most important part for liberals to stand firm on is the empirically correct point that our existing institutions, when properly utilized, are in fact better at detecting, preventing, prosecuting and punishing terrorists than the militarization, torture and disregard for civil liberties advocated by the right. When we waver on this point, as Holder (and by extension Obama) seem to be doing by advocating a roll-back of Miranda, we give credence to the argument that the rule of law and the fight against global terrorism are incompatible.