You Have the Right to... What, Exactly?

Today, the Obama administration continued to shore up its Bush-style approach to crime, stating that "terror" suspects should no longer enjoy the protections of Miranda v. Arizona, the famous 1966 Supreme Court case which laid out a set of procedures that the police must follow at arrest in order to protect the arrestee's due process rights. Attorney General Eric Holder announced the administration's view in the wake of the Times Square near-bombing.

Even people with no qualms about the past decade's erosions of civil liberties and constitutional protections should at least ask themselves how exactly this will make America safer. As the Times article notes, Miranda already includes an exception for exigent threats to public safety under New York v. Quarles. So, law enforcement already has easy access to legal tools to deal with the rare "ticking time bomb" scenarios that have captured the minds of a nation. And to briefly shift to international law, it is unheard of for law enforcement, without any judicial oversight whatsoever, to simply designate an American citizen an "international terrorist" deserving of no 5th Amendment protections -- in Hamdi v. Rumsfeld (2004), even the heavily conservative U.S. Supreme Court rejected this approach at the height of Bush-era anti-terror fervor.

Miranda is also an established, accepted reading of the 5th Amendment. At its inception, many judges (most famously Justice White, in his dissent to the case) and lawmakers (most famously Congress, via the stillborn 18 USC section 3501). And yet today, most law enforcement personnel favor Miranda -- unlike the open-ended guidance that the Supreme Court has provided police in other areas of criminal procedure, Miranda gives a very simple, straightforward directive. This kind of clear standard benefits both law enforcement and people suspected of crime. Moreover, shortly before 9/11/2001, even conservatives had come to accept Miranda as a permanent constitutional prophylactic -- in Dickerson v. United States, the 2000 case that overturned 18 USC section 3501, Chief Justice Rehnquist, an icon of tough-on-crime jurisprudence, spoke for a 7-2 majority in stating that "the warnings have become part of our national culture."

Apparently, our national culture has changed quite a bit since those heady days when the Constitution meant something besides a hassle for those who would kick ass first -- usually covertly -- and ask questions later. TV might indicate otherwise, but in real life, good cops don't think in terms of the ends justifying the means, but rather accept that in a free society, law enforcement will always face some limitations, and that this is the true thin blue line between a free society and a fascist one. And even if the ends do justify the means sometimes, it's not clear how depriving "terror" suspects of Miranda rights will protect Americans, as noted above. With the left and the right in this country consigned to arguing over who loves the Constitution more, why wouldn't we want people to be informed of their most basic, uncontroversial rights -- the right to an attorney and the right to choose whether or not to speak with the government?

Maybe someone has a cogent, constitutionally-grounded argument for why Miranda's protections should not apply to citizens suspected of terrorism. Maybe that someone is Barack Obama, Eric Holder, or their new spiritual ally, Rudy Giuliani. But until we hear that argument, we should be wary about passing over to law enforcement the ability to designate as an "enemy combatant" an American citizen apprehended on an American street. Instead of just throwing the word "terrorism" around, the Administration needs to acknowledge that doing so obscures the fact that it's treading a slippery slope away from established constitutional protections that all Americans enjoy. Holder should consider the extent to which the War on Terror has been a globalization of failed War on Crime methods and ideals that far predate the Bush administration.

But instead of telling us how exactly loosening Miranda would benefit the search for terrorist suspects, Holder has simply invoked tried and true platitudes about the "threat we now face," bringing media-friendly phrases to what should be a sober policy discussion. In doing so, he follows a long tradition of policymakers more concerned with appearing tough on crime than with actually being smart on crime, whether with regard to the War on Drugs, anti-gang ordinances, or the domestic surveillance done in the name of the War on Terror that would have been considered unthinkable only a decade ago. He speaks of "international terrorists" to obscure the fact that the exception he's seeking would also apply to American citizens, who have grown increasingly used to being monitored under the auspices of the War on Terror. People designated as such can count themselves as homo sacer, enjoying neither the diplomatic protections of the foreigner nor the constitutional protections of the citizen.

And let's not forget how easy it is to be counted among the terrorists these days. If the Obama administration gets the law it wants, perhaps a decade from now, the conservatives who count William Rehnquist as a liberal will get their wish and have Miranda stricken from the books completely. Meanwhile, the United States leans towards a permanent state of exception, where the idea of positive community- or individual-based rights and identities held against the government no longer exists, where the State capriciously determines what constitutes the "public good" -- and what it can do to advance that.