It should be noted that Lindsay Graham (along with his buddy John McCain) is not the only federal official interested in limiting the reach of Miranda – and preventing those rights from being read to Dzhokhar Tsarnaev. Eric Holder, in 2010, broadly expanded the exception to Miranda unilaterally, without any legislative cover. In a memo to the FBI, Holder explained his reasoning as such:
There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.
“Who gets to make this determination?”, Emily Bazelon of Slate rhetorically asks. ”The FBI, in consultation with DoJ, if possible. In other words, the police and the prosecutors, with no one to check their power.”
What’s remarkable about this is that the original 1984 “public safety” exception to Miranda, established in New York v. Charles, proved deeply offensive to the SCOTUS liberals. Thurgood Marshall wrote a scathing dissent to that decision, in which he argued that the ”public-safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary.” The court’s decision marked, as he put it, “a serious loss” to “the administration of justice.” And yet here we are, with a nominally liberal President, expanding that exception to criteria well beyond immediate “public safety.” Here we are, where – against the backdrop of cheering crowds – the FBI will ask and do to Dzokhar Tsarnaev anything it damn well pleases.
Lindsay Graham was only advocating the implementation of a policy that the Obama DOJ had already established. That speaks volumes about where mainstream liberals stand vis-a-vis civil liberties. I don’t really understand advocation of a vengeful justice, and I certainly don’t understand either political party – not just the party of Graham and McCain, but also the party of Obama and Holder – in the post-9/11 era. Frankly, it would be nice if more folks on the left echoed Scott Lemieux, who this morning explained very clearly and succinctly what’s at stake here:
[This is] the message of the previous administration — i.e. that the rule of law and the “war on terror” are incompatible, that slapping the label “terrorist” on a suspect means that professional procedures that respect the rights of the accused can’t work. This isn’t right — it’s wrong in terms of the values it represents and it’s wrong in terms of the underlying assumption that less respect for the rights of the accused means more effective crime control. The appropriate course of action is for Tsarnaev to be treated like any other criminal suspect, consistently with not only the letter but the spirit ofMiranda. Coercive interrogations are wrong because they’re wrong, not just because the state isn’t permitted to introduce evidence gained from them. This is why the Bill of Rights contains the Fifth Amendment rights Miranda was designed to enforce.
Even better, it would be nice if the Obama administration echoed those beliefs as well.
