The Wall Street Journal reports that new rules from the Obama administration "allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades."
The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.
A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to "exceptional cases" where investigators "conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat." Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public....
Attorney General Eric Holder suggested changing the guidelines last year after dust-ups over Miranda's use in two major domestic-terror arrests. The suspect in the Christmas Day 2009 bombing, Umar Farouk Abdulmutallab, was questioned by FBI agents for less than an hour before being read his rights. Times Square bombing suspect Faisal Shahzad was questioned for three hours.
Those "dust-ups" were shrill criticism from Republicans attacking Obama for Mirandizing Abdulmutalllab. At the time, the administration was aggressive in defending the use of Miranda, with then-Press Sec. Robert Gibbs saying it was the "right decision" and "Abdulmutallab was interrogated and valuable information was gotten by those experienced interrogators.”
Glenn Greenwald raises a question unanswered, but presumed, from the WSJ story:
The WSJ report says that the change was motivated not only by controversy over Mirandizing the Underwear Bomber, but also Times Square attempted bomber Faisal Shazad. Shazad, though, is an American citizen. Although the DOJ memo is not public—the WSJ saw a copy of it—this presumably means that the dilution of Miranda applies to non-citizens and U.S. citizens alike, including those captured on American soil. In other words, with the sweep of a unilateral pen, Miranda simply no longer compels the government to read you your rights if you are accused of involvement in Terrorism and FBI agents unilaterally decide that it shouldn't....
The right here is established by the Supreme Court as guaranteed by the Constitution, and the specific right in question -- not to have pre-Miranda statements admissible in court -- is one the administration cannot change and does not purport to. But the guidelines long in place for reading a detainee his rights were vital to preserving the Miranda framework -- for preventing abusive interrogations and coerced statements -- and it is this protection which the Obama DOJ is seriously diluting with such a permissive and discretionary standard.
Last week, writing about the Manning case, Jack Balkin wrote about the confirmation provided by the Obama administration of his 2006 prediction that "the next president, whether Democratic or Republican, would ratify and continue many of President George W. Bush's war on terrorism policies."
The reason, we explained, had less to do with the specific events of September 11th, and more to do with the fact that the United States was in the process of expanding the National Security State created after World War II into something we called the National Surveillance State, featuring huge investments in electronic surveillance and various end runs around traditional Bill of Rights protections and expectations about procedure. These end runs included public private cooperation in surveillance and exchange of information, expansion of the state secrets doctrine, expansion of administrative warrants and national security letters, a system of preventive detention, expanded use of military prisons, extraordinary rendition to other countries, and aggressive interrogation techniques outside of those countenanced by the traditional laws of war....
Barack Obama has largely confirmed these expectations, much to the dismay of many liberals who supported him. After issuing a series of publicly lauded executive orders on assuming office (including a ban on torture), he has more or less systematically adopted policies consistent with the second term of the George W. Bush Administration, employing the new powers granted to the President by Congress in the Authorization of the Use of Military Force of 2001, the Patriot Act of 2001 (as amended), the Protect America Act of 2007, the FISA Amendments Act of 2008 and the Military Commissions Acts of 2006 and 2009. These statutory authorizations have created a basic framework for the National Surveillance State, and have made Obama the most powerful president in history in these policy areas.
Obama's embrace of the Bush template for the National Security State might have been inevitable, but as Balkin comments, there's still a choice for the administration, and the nation, in what kind of National Security we're going to have: "one that does its best to protect privacy, civil liberties and internationally recognized human rights in changing conditions, or one that debilitates or eliminates these protections and guarantees, and brings us ever closer to emergency government as a normal condition of politics." Erosion of Miranda for citizens, like the administration's treatment of Bradley Manning, suggests that Obama has no intention of limiting the National Security State.