. . . Or a Sensible Bow to Post-9/11 Reality
By John Yoo, The Wall Street Journal
Television fans know that Miranda v. Arizona requires police to warn a suspect that he has the right to remain silent. But no one knew until last week what sitting quiet after the warning meant. In Berghuis v. Thompkins, the Supreme Court said so.
A suspect's long period of silence (in this case three hours), followed by a reluctant answer to a police officer's question, could amount to either an invocation or a waiver of the right. By choosing the latter, the court performed its function of choosing some rule -- any rule -- to govern. The rule of law requires a law of rules.
But Thompkins may well mean more than cleaning some smudges on the circus-mirrors of Miranda-world. Miranda creates a universe where police questioning is considered "inherently coercive," in the words of dissenting Justice Sonia Sotomayer (once defended by the Obama administration as a tough prosecutor) and the Supreme Court dictates the very words that police must say to every suspect. Often left unmentioned is the embarrassing fact that the Miranda warnings themselves appear nowhere in the text of the Constitution.
Thompkins may signal that a majority of the court is ready to reconsider this monument to judicial creativity. The court did not claim -- nor could it -- that the Constitution requires that silence constitute a waiver of Miranda rights. Instead, it found that suppressing a suspect's statements without a clear and unambiguous demand for his Miranda rights "would place a significant burden on society's interest in prosecuting criminal activity," increase burdens on the police, and only add "marginally" to the goal of ensuring that confessions are voluntary.
It is no accident that the court's newfound attitude toward Miranda has arrived during a time of war. Just a decade ago, in Dickerson v. United States, a 7-2 court rejected Congress's attempt to restore the law that had prevailed for the previous 70 years -- confessions would be suppressed if they were not "voluntary" under the circumstances. Dickerson confidently dismissed the argument that the Miranda warnings were only judicially invented rules to govern the admission of testimony at trial. Instead, Chief Justice William Rehnquist declared that Miranda flowed from the Fifth Amendment's right against compelled self-incrimination.
What a difference September 11 makes. The Miranda issue symbolizes President Obama's restoration of the terrorism-as-crime paradigm that prevailed before the 2001 attacks.
Following its terrorism-as-war approach, the Bush administration did not believe the Constitution grants captured al Qaeda operatives the right to remain silent or the right to a lawyer. In contrast, the Obama administration reflexively decided to treat Umar Farouk Abdulmutallab, who attempted to destroy a Detroit-bound airliner on Christmas Day, as a criminal defendant and read him his Miranda rights, even though he had started to provide information.
When Faisal Shahzad's May 1 car bombing of Times Square luckily failed, the administration still classified him as a suspect and gave him the benefit of Miranda too. Mr. Obama has decided that the public relations benefits of treating terrorists as criminals, rather than enemy combatants, somehow outweigh the need for immediate intelligence on al Qaeda's network, its operations and its attack plans.
Forcing American soldiers and intelligence agencies to follow Miranda while they capture al Qaeda leaders will only interfere with their military missions and expose them to greater dangers of attack. If the Obama administration properly considered al Qaeda to be an enemy at war with the United States, Miranda would not apply because interrogation would seek actionable intelligence to stop attacks, not confessions for use in civilian trials.
But the Obama administration has the ACLU worldview so hardwired into its DNA that it cannot think outside the criminal-justice framework. Rather than consider al Qaeda agents to be enemy combatants, Attorney General Eric Holder has called for legislation to expand the "public safety" exception to Miranda, which allows police to question without warnings to stop immediate threats of crime. Our nation's top law-enforcement officer, who criticized Arizona's controversial immigration law to Congress without reading it, can add Dickerson to his summer reading list. The Supreme Court has made clear that the judiciary will dictate the scope of Miranda, not Congress.
Dickerson reveals the administration's Miranda proposal as an empty ploy to defuse the rising opposition to its terrorism policies. But it is of the worst kind, for the gesture signals weakening American resolve before redoubled terrorist attacks.
It may well be the Supreme Court that rides to Mr. Obama's rescue. Even as it rejects the administration's symbolic terrorism legislation, the court's new flexibility may lead to its own Miranda modifications to ease the burdens on our military, intelligence and police. That would give the administration more flexibility to fight terrorism within the criminal-justice paradigm, though at the expense of weakening the civil liberties of all Americans. It would also clear the field for Mr. Obama to rise or fall on the merits of his own policies, and not those of the courts.
Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute.