Wall Street Journal on New Miranda Rules

Evan Perez of the Wall Street Journal has this very interesting piece reporting that "New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades." Writes Perez:

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to "exceptional cases" where investigators "conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat." Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public. Matthew Miller, a Justice Department spokesman, said the memo ensures that "law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents." He said "the threat posed by terrorist organizations and the nature of their attacks—which can include multiple accomplices and interconnected plots—creates fundamentally different public safety concerns than traditional criminal cases."

Perez goes on to report that:

The Miranda change leaves other key procedures in place, notably federal rules for speedy presentation of suspects before a magistrate, normally within 24 hours. Legal experts say those restrictions are bigger obstacles than Miranda to intelligence gathering. The FBI memo doesn't make clear whether investigators seeking exemptions would have to provide a Miranda warning at the time of such a hearing. Also unchanged is the fact that any statements suspects give during such pre-Miranda questioning wouldn't be admissible in court, the memo says.

A few thoughts. First, as one of those folks who thinks that presentment is a much bigger deal than Miranda, I remain puzzled by the focus on relaxing Miranda. While seeing how much flexibility there is in the public safety exception to Miranda makes good sense, Miranda is a tail wagging the dog in the problem of managing crisis detentions. The dog is how much time investigators get with a suspect before they have to interrupt their conversations and put him through a formal proceeding in front of a magistrate. Second, it is interesting that this ended up being policy guidance, rather than legislation. When this issue first arose, Attorney General Eric Holder said publicly that he was looking for legislative help on the public safety exception. The proposal, however, never materialized. This memo--which is not public--is what seems to have happened instead. That seems to me like a bad trade. A rich debate was developing over whether codifying the public safety exception was possible constitutionally and how much one could do it. Now, instead, we have a policy change that isn't even public.