Appearing on the Sunday shows for the first time today, Attorney General Eric Holder said the Obama Administration wants to change the Miranda rule — the requirement that police inform suspects of their right to remain silent and to a lawyer before interrogation — in terrorism cases to “something that is flexible and is more consistent with the threat that we now face.”
Holder said on Meet The Press that the Administration wants to work with Congress to make the public safety exception to Miranda — in which information from questioning before reading the Miranda warning can be admitted in court, in certain situations in which public safety is a concern — “more flexible.”
As TPMmuckraker reported Friday, experts believe the Administration is already pioneering a robust use of the public safety exception to Miranda. In the case of Faisal Shahzad, the man who allegedly tried to set off a crude bomb in Times Square, FBI agents reportedly questioned him for three or four hours before reading him his rights. Much more on the back story here.
Many Republicans have called for terrorism suspects to be classified as “enemy combatants and not read their rights at all. But the Administration had previously defended Miranda, with Holder saying in April that the “giving of these warnings indicates to that person that you are going to be fair. [Terrorism suspects] become more trusting and perhaps more desirous of sharing information.”
The new policy articulated by Holder appears to be a middle-ground position. On NBC, he called the new position “big news.”
He also discussed the issue on ABC’s This Week. Here’s video of Holder on NBC and ABC discussing Miranda, with transcripts below:
MR. HOLDER: Well, I wouldn’t say that we talked to him for eight hours without giving his Miranda warnings, but aside from that what you do is you use the public safety exception that the Supreme Court has defined to make sure that there are no immediate threats.
MR. GREGORY: The quote/unquote “ticking time bomb” scenario.
MR. HOLDER: Ticking time bomb. And then you make the determination whether or not it is appropriate, whether you think that giving Miranda warnings to that person is going to stop the flow of information or whether the flow of information will continue, and you make the determination. In this particular case, is it more important for us to get intelligence from this person, or is it more important for us to build the case? One of the things that we have certainly seen is that the giving of Miranda warnings has not stopped these terror suspects from talking to us. They have continued to talk even though we have given them a Miranda warning.
MR. GREGORY: Is that still the case here with Shahzad?
MR. HOLDER: It’s clearly the case. He was given his Miranda warnings after the public safety exception questioning was finished, and he has talked to us and he continues to talk to us.
MR. GREGORY: But would you like interrogators to have more flexibility?
MR. HOLDER: I think we have to look at the rules that we have and look at the situation that we now confront. The public safety exception was really based on a robbery that occurred back in the ’80s and something to do with a supermarket. We’re now dealing with international terrorists, and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face.
MR. GREGORY: So let me, let me unpack that a little bit. What you’d like to see happen is that Congress would pass a law that would say to judges, “Hey, look, in this environment if we extract information that could be valuable intelligence about another terror plot, about who they’re involved in, whether they’re connected to the Pakistani Taliban, we want to get all that without them lawyering up and still be able to use that against them in the court of law.” And you need more flexibility to do that, you think.
MR. HOLDER: Yeah. We certainly need more flexibility, and we want the public safety exception to be consistent with the public safety concerns that we now have in the 21st century as opposed to the public safety concerns that we had back in the 1980s.
MR. GREGORY: So that’s news. I mean, that’s an important development. Would you work with Congress to try to get that new law passed?
MR. HOLDER: Yeah. We want to work with Congress to come up with a way in which we make our public safety exception more flexible and, again, more consistent with the threat that we face. And yes, this is, in fact, big news. This is a proposal that we’re going to be making and that we want to work with Congress about.
MR. GREGORY: So a new priority for the administration.
MR. HOLDER: It is a new priority.
TAPPER: Critics say that he should not have been — some critics say he should not have been his Miranda rights, the right to remain silent, et cetera. Now, I know that the public safety exception was invoked, so before he was read his rights, he was interrogated. But does the current Miranda system, which was created before I was born and was updated, this public safety exception, in 1984 — so none of the crafters were really aware of this plot, this threat that we face today.
Does it give you the flexibility you need?
HOLDER: Well, that’s one of the things that we’re looking at. I think we have to first say that the system that we have in place has proven to be effective. We have used our law enforcement authorities that we have as they now exist very effectively. People have been given Miranda warnings. People have continued to talk, as was the case here, as was the case with Abdulmutallab in Detroit.
But I think we also want to look at make determinations as to whether or not we have the necessary flexibility, whether we have a system that can deal with the situation that agents now confront. The public safety exception comes from a case called Quarles that dealt with a — the robbery of a — of a supermarket.
We’re now dealing with international terrorism. And if we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception. And that’s one of the things that I think we’re going to be reaching out to Congress to do, to come up with a proposal that is both constitutional, but that is also relevant to our time and the threat that we now face.
TAPPER: What kind of modification are you talking about, more time for the — for investigation before the Miranda rights are read or what?
HOLDER: Well, I think a number of possibilities, and those are the kinds of things that we’ll be discussing with Congress, to make sure that we are as effective as we can be, that agents are clear in what it is that they can do and interacting with people in this context, so we’re going to be working with Congress so that we come up with something that, as I said, gives the necessary clarity, is flexible, but is also constitutional, is also constitutional.