Officials from the White House, Justice Department and Congress are considering revisions to the criminal rights afforded defendants upon arrest.
The discussions became public this week when presidential adviser David Axelrod told CNN that the focus is on expanding the "public safety exception that allows a delay in administering" Miranda rights. The question, Axelrod said, is "how elastic is that, and do we need to make any sort of adjustment to it?"
According to White House officials, these discussions predated the failed car bombing in Times Square earlier this month. And government officials involved in the discussions say the debate is much broader than the public safety exception to Miranda warnings.
The Supreme Court established the public safety exception in 1984. The rule allows interrogators to question defendants without immediately reading their rights if public safety is at stake. Interrogators initially used the public safety exception to question suspected Times Square bomber Faisal Shahzad. They then Mirandized him, and he continued to cooperate, according to government officials.
Still, the question facing the Obama administration is whether the public safety exception can be expanded in order to prolong defendants' cooperation before they are told they have the right to remain silent. "Any change that would take place would have to be done legislatively," White House spokesman Robert Gibbs said Tuesday during a news briefing.
Former interrogators such as Mark Fallon question whether changes are necessary.
"I'm not convinced that any kind of change in the Miranda system is really going to accomplish anything," says Fallon, who is now with the international consulting firm The Soufan Group. "It may, in fact, be a solution in search of a problem."
Fallon investigated many of the top terrorism attacks of the 1990s, including the USS Cole bombing. He fears that these changes may impede criminal investigations if a court finds a bigger public safety exception to be unconstitutional.
"That's one of the challenges we've had with military commissions," says Fallon. "When the cases go before the final court in the land, the Supreme Court, they've overruled some of the government's procedures."
For the administration to now talk about changing some fundamental protections that have been in effect for a long time is very troubling.
According to two government officials involved in these talks, Miranda warnings are only one part of the conversation, and perhaps not the most important.
The other major issue is known as "presentment." The law says defendants must be presented to a magistrate judge soon after arrest.
"That does interrupt the interrogation" says Benjamin Wittes, who studies detention and interrogation at the Brookings Institution. "So I think the much more significant issue than Miranda itself is whether you can, under some circumstances, delay that presentment to a magistrate in order to give yourself time to have the interrogation," Wittes says.
The proposal that the administration is working on could postpone a detainee's first meeting with a judge.
Civil liberties activists never thought they would have to fight these battles in an Obama administration.
"This administration came in with a principle that they were going to restore the rule of law," says former FBI agent Mike German, who is now with the ACLU. "For the administration to now talk about changing some fundamental protections that have been in effect for a long time is very troubling."
It is true that President Obama came to office saying he would restore rule of law. But in a major national security speech, he also said, "We are indeed at war with al-Qaida and its affiliates. We do need to update our institutions to deal with this threat."
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