If the Boston Marathon bombings had occurred in 2010, top congressional and Homeland Security officials criticizing the “rush” to Mirandize suspect Dzhokhar Tsarnaev would have had more than a few allies in the White House.
Three years ago, top White House officials — including senior adviser David Axelrod and President Barack Obama — publicly supported Attorney General Eric Holder’s effort to pass a new law permitting investigators to question terrorism suspects at length without informing them of their Miranda rights. (While legal analysts who aren’t Slate’s Emily Bazelon agree that investigators are never actually required to Mirandize suspects, information gleaned from interviews with suspects who do not know their rights are generally inadmissible in court, unless the government invokes and justifies using the public-safety exception.)
They had good reason to at least feign a desire for tougher interrogation rules. Following the failed attempt by Faisal Shahzad to detonate a car bomb in New York’s Times Square, the Obama administration was taking criticism for allowing federal investigators to read him his Miranda rights less than four hours after his arrest. Republican Arizona Sen. John McCain said informing Shahzad of his rights was a “serious mistake.” Syndicated columnist Charles Krauthammer even suggested that the only “logical and serious way” of handling suspects like Shahzad was to treat them like enemy combatants, who are denied access to the civilian justice system.
As The Washington Post’s Marc Thiessen noted, Holder reacted defensively by telling ABC News that the White House wasn’t to blame, because it, too, wanted to change the rules.
“The [Miranda] system we have in place has proven to be effective,” the attorney general said in an interview with anchor Jake Tapper. “I think we also want to look and determine whether we have the necessary flexibility — whether we have a system that deals with situations that agents now confront. … We’re now dealing with international terrorism. … I think we have to give serious consideration to at least modifying that public-safety exception [to the Miranda protections]. And that’s one of the things that I think we’re going to be reaching out to Congress to do — to come up with a proposal that is both constitutional, but that is also relevant to our times and the threats that we now face.”
If Holder wanted to push a bipartisan proposal through Congress to revise Miranda, the political climate was ripe. Democrats controlled the House of Representatives, the Senate and the White House, and leading Republicans all but endorsed Holder’s suggestion.
“I’ve been advocating a long hard look at all of our laws regarding the threats we face,” said Republican Sen. Lindsey Graham. “I would remind Attorney General Holder that we have been very much at war with international terrorism for a long time,” echoed the Republican leader in the Senate, Mitch McConnell.
The White House was also looking to strengthen its national security credibility. Only five months earlier, Homeland Security Secretary Janet Napolitano had endured weeks of public ridicule for declaring that “the system worked really smoothly” when the explosives a 23-year-old Nigerian had attached to his underwear and taken aboard an airliner bound for Detroit on Christmas Day failed to fully detonate — not because of any clever sleuthing by the FBI, or last-minute heroism by Transportation Safety Administration blueshirts, but because he had worn dirty underwear for nearly three weeks.
As reports trickled out that the suspect in the case had been questioned for only 50 minutes before he was informed of his right to remain silent, Napolitano quickly attempted to walk back her statement, insisting that the system in fact “failed miserably.”
Axelrod appeared on CNN later in the week to back Holder, stating that President Obama thought Miranda may need to be changed.
“I think the president is open to looking at that issue. … Certainly we’re willing to talk to Congress about that,” Axelrod said.
In the three years leading up to the bombings at the Boston Marathon, though, White House and congressional officials failed to pass or introduce any law revising Miranda or the public-safety exception. Amid pushback from senators like Vermont Democratic Sen. Patrick Leahy, who insisted that any law relating to Miranda had to abide by Supreme Court precedent, the White House opted instead to make minor internal policy changes.
The FBI Domestic Investigations and Operations Guide, which was approved in 2008 by then-Attorney General Michael Mukasey, for the first time incorporated additional training on “Advice of rights in connection with operational terrorists inside the US (the Quarles rule)” when it was revised in 2011 by Obama administration officials, according to the FBI website, which allows the public to view non-classified material in the manual. The updates also included recent developments in Miranda law related to three significant 2010 Supreme Court cases.