Our national debate now features the clash between two urgent forces. One is the need to obtain timely intelligence to prevent mass murder at the hands of terrorists. Three times in President Obama’s brief tenure, there have been terrorist strikes on American soil: the Hassan massacre at Ft. Hood, the Christmas Day airline bomber in Detroit, and the Times Square bomber. In the first of these, 13 people met their fate. In the latter two, we got lucky. But luck is no substitute for a national security policy. And luck doesn’t hold forever.
The second force, which we created, is the force of legal precedent that essentially invites captured killers and would-be killers – terrorists and others – to clam up. This is the 1966 Miranda decision. Miranda requires the police to tell suspects in custody that they have the right to remain silent and to the services of an attorney during questioning. This is a virtual invitation to stonewall. Every now and again, the suspect will decide to talk anyway. But banking on that serendipity is foolhardy. If the authorities violate Miranda, the suspect’s statement is automatically suppressed, even if voluntarily given, seriously complicating the chances of obtaining a deserved conviction.
In recent days, the Attorney General has pointed out that there is an “emergency exception” to the Miranda rule, one that allows the police to question a suspect when public safety is in immediate danger. Apparently, the roughly three hour-long unMirandized questioning of the Times Square bomber was undertaken in the hope that the courts will see fit to apply this exception. Maybe they will, but it’s hardly a sure thing. In the case in which the exception was created, New York v. Quarles, 467 U.S. 649 (1984), the unMirandized questioning lasted less than a minute. Again, the Administration appears to be banking on a combination of (1) hope and (2) the good sense of people more serious than it is.
That is irresponsible as a matter of security policy and mistaken as a matter of Constitutional law. Following the break, I describe what needs to be done.
