Why did Obama, Holder abandon push to reform questioning of suspected terrorists?

Gregg Re Editor

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.

But the additional regulations for the most part simply outlined the holdings in those cases and New York v. Quarles, a 1983 Supreme Court case that established the public-safety exception, and explained that agents should handle the interrogation of suspected domestic terrorists by adhering tightly to Quarles’ limitations. On several occasions, the manual cited Quarles explicitly, making clear that the new guidelines are effectively restatements of existing case law.

“The determination whether particular unwarned questions are justified on public safety grounds must always be made on a case-by-case basis based on all the facts and circumstances,” the 2011 FBI manual read. “In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal investigation.”

Reports began surfacing in 2011 that a secretive FBI memo obtained by the Wall Street Journal showed that the agency was willing to interrogate high-value suspects without Mirandizing them, even if there is no imminent danger to the public.

When officials determine that “continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat,” they do not need to read suspects their rights, according to the policy.

Even this more aggressive FBI policy does not make a judge any more likely to admit into evidence statements made by a suspected terrorist. For a robust terrorism-related Miranda rule to have the most impact and the best chance to stand up in court, experts agree, the administration should have held steady in its push for a comprehensive legislative reform.

“I don’t think the administration can accomplish what I think needs to be done by policy guidance alone,” California Rep. Adam Schiff, the leading Democrat on the House Intelligence Committee, told The Wall Street Journal last year. “It may not withstand the scrutiny of the courts in the absence of legislation.”

Philip B. Heymann, a Harvard law professor and former Justice Department official, agreed that a congressional stamp of approval would help Miranda-related policy changes survive Fifth Amendment legal challenges.

“Not having addressed how long the emergency exception can be, the Supreme Court would be very hesitant to disagree with both the president and Congress if there was any reasonable resolution to that question,” he told the Journal.

“Experience shows that the Court would give great weight to any judgment on this kind of national-security question jointly endorsed by Congress and the President,” agreed New York University law professor Rick Pildes. “If there is a strong need to permit law enforcement to have a period of time to question for intelligence information without Miranda warnings, it would be better to have this done not through ad hoc guesses from the FBI in each case as to what’s permissible, or unilateral executive-branch action, but through legislation.”

Again taking heat for allowing a suspected domestic terrorist to clam up after hearing his legal rights, Holder last week took refuge behind the Miranda-related laws he had hoped to change just two years earlier.

The decision to inform Tsarnaev that he could remain silent was “totally consistent with the laws that we have,” Holder told CNN on Saturday.

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