Blog of Rights

Miranda: If it Ain't Broke…

By Suzanne Ito, ACLU at 3:39pm

(Originally posted on Daily Kos.)

The next time you sit down to watch your favorite crime show (Law & Order: SVU is mine), think about how often you've heard the words: "You have the right to remain silent…" as the detective/cop whips out the handcuffs and arrests a suspect. That's called the Miranda warning, a requirement enshrined into law by the 1966 Supreme Court decision Miranda v. Arizona. In that decision, the high court determined that suspects must be informed of their Fifth and Sixth Amendment rights "prior to interrogation" if their statements are to be used against them in court.

(Quickie civics lesson: The Fifth Amendment states in part that no person "shall be compelled in any criminal case to be a witness against himself," a.k.a. the safeguard against self-incrimination. The Sixth Amendment states in part that the suspect has the right "to have the Assistance of Counsel for his defense," a.k.a. the right to a lawyer.)

To be "Mirandized" is to be "read your rights."

The Supreme Court carved out an important exception to the Miranda rule in 1984 in its decision in New York v. Quarles. That decision concluded that if there's an imminent threat to public safety, the suspect can be questioned before he's read his rights and his statements can still be used against him.

Flash-forward to Christmas Day 2009. Umar Farouk Abdulmutallab is caught on a Detroit-bound plane with explosives in his underwear, intent on blowing up the plane. He's arrested, cooperates with questioning under the public safety exception, and is then Mirandized 50 minutes later.

Flash-forward again to a few weeks ago, when Faisal Shahzad, a U.S. citizen, is arrested for trying to bomb Times Square with a car full of explosives. Shahzad also cooperated with interrogators as he was questioned under the public safety exception; he too was later Mirandized.

So these two cases are very similar: both are suspected of terrorist acts, both are caught, questioned, and Mirandized, and most crucially, both cooperate with law enforcement authorities both before and after they were read their Miranda rights.

Which is why it's completely befuddling that some politicians have used these attempted terrorist attacks to propose that we completely change the way we enforce the rule of law. Some have charged that it was mistake to Mirandize both Abdulmutallab and Shahzad, that they should have been interrogated more—some have even implied tortured—before they were read their rights. The Obama administration has caved to this naked fear-mongering: Last week, Attorney General Eric Holder told the House Judiciary Committee that the administration wants to "modernize" and "clarify" the public safety exception in terrorism cases.

Well, we and a whole slew of other groups think changes to Miranda are both threatening to our criminal justice system and entirely unnecessary. So on Monday, we sent a letter to Holder asking him to leave Miranda alone. And we're not the only ones who think this is a bad idea: three former FBI agents also sent a letter to Holder, writing:

As professional interrogators who have spent decades questioning accused criminals — including spies and terrorists — we are writing to make clear that interrogators can do their job using the existing Miranda rules. No changes are necessary. In fact, changes might do more harm than good.

You can join us: send a message to the attorney general telling him to leave perfectly good alone. Tell him to keep his hands off Miranda!

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