FBI agents questioned Times Square bombing suspect Faisal Shahzad for three hours last week before reading him the Miranda warnings. Critics of the Obama administration, like Sens. John McCain, John Cornyn, and Jon Kyl, took to the airwaves over the weekend to argue that terror suspects should not receive the warnings at all. And on Sunday, Attorney General Eric Holder announced that the White House may ask Congress to carve out an exception to Miranda for terrorism suspects. Does that mean that terrorists would lose the right to remain silent? Or does it mean that we’d stop telling them they have that right?
The latter. The landmark 1966 case Miranda v. Arizona did not establish the right to remain silent nor the right to an attorney—those are enshrined in the Constitution, and Congress can’t take them away without an amendment. Miranda merely conferred an obligation on police to advise suspects of their substantive rights before commencing an interrogation. The Obama administration’s proposal would mean that confessions given by terror suspects who hadn’t heard the warnings would be admissible in a criminal trial.
Until the 1960s, the rights to remain silent and have an attorney only applied in the courtroom. The change brought on by the Miranda case created an immediate public furor, with the Los Angeles police chief predicting that all confessions would soon be useless. During the 1968 presidential campaign, George Wallace called the Court “a sorry, lousy, no-account outfit,” while Richard Nixon ranted about confessed criminals skipping out of jail. Even Democrat Hubert Humphrey declined to defend the decision.
Even though Miranda has rankled politicians for 40 years, most scholars don’t think the right to a warning has much practical significance. Studies of interrogations before and after the decision suggest that little has changed. Taken together, the data show that about 80 percent of suspects are perfectly willing to speak to the police without their attorney, the same number that did so pre-Miranda. About half of those who speak make incriminating statements, for reasons that continue to baffle law professors. Some speculate that the Miranda warnings have become background noise, akin to the safety instructions you hear on an airplane.
The Supreme Court has continually limited the scope of Miranda. For example, police may skip the announcement of a suspect’s rights so long as they don’t formally arrest him. If they do arrest a suspect, they may interrogate him without the warnings, and then make up for it by “Mirandizing” him after the fact. At that point, they just need him to restate whatever incriminating things he already said.
In 1984, the Court created another Miranda loophole, giving investigators the right to omit the warnings if their questions are “reasonably prompted by a concern for the public safety.” Once the threat to the public has passed or has been determined never to have existed in the first place, Miranda warnings are required. That’s what happened with Shahzad last week—the FBI agents immediately started questioning him, then gave him the Miranda warnings once they had determined with certainty that he wasn’t privy to another ticking time-bomb.
Now the White House wants Congress to redefine this “public safety” exception such that terrorism suspects will never have to be read their rights. While the president is free to argue his case before the Court, congressional action is largely irrelevant. Miranda was a constitutional case, and the Supreme Court jealously guards its authority as the final word on all things constitutional. Lawmakers attempted to reverse Miranda completely in 1968, but the Court slapped them down, noting that the case “announced a constitutional rule that Congress may not supersede legislatively.” While the justices like making exceptions to Miranda, they don’t like senators telling them they have to.
Senator Joseph Lieberman has proposed stripping terrorism suspects of their citizenship. It’s not clear whether this action—of extremely dubious constitutionality itself—would affect their right to the Miranda warnings. The Court has never made a point of excluding noncitizens from Miranda’s protections, although it has not directly addressed the issue.
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Explainer thanks Yale Kamisar of the University of San Diego School of Law, Richard A. Leo of the University of San Francisco School of Law, and George C. Thomas III of Rutgers University-Newark School of Law. Thanks also to reader David A. Tagliaferri for asking the question.