A group of 35 human rights, religious and civil liberties organizations asked Attorney General Eric Holder Monday to rethink his call for Congress to modernize the Miranda warning to deal with terrorism suspects.
In a letter to Holder, the coalition expressed concerns that “weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.”
The coalition noted that Holder has said Miranda warnings have not hampered two recent terrorism cases and that suspects continued cooperating even after being advised of their rights.
“In the nearly nine years since the attacks of 9/11, the Department of Justice has obtained convictions in more than 400 international terrorism or terrorism-related cases without weakening Miranda or risking the safety of Americans. The ‘public safety exception’ is exception enough,” the letter states.
The coalition was formed by the National Association of Criminal Defense Lawyers and includes the Alliance for Justice, the American Civil Liberties Union, People For the American Way, Human Rights First, Human Rights Watch, the Government Accountability Project, the Brennan Center for Justice and other organizations. In the letter, the groups also requested a meeting with the Attorney General or his staff to discuss their concerns.
Holder had dubbed his announcement that the Justice Department would work with Congress to “modernize” Miranda warnings as ”big news” when he made the Sunday talk show rounds last weekend.
Several Democratic leaders have expressed skepticism about the proposal, The New York Times has called the proposal “dubious” and said that Holder “owes the public a much better explanation.” Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, has also expressed doubt that Congress will change Miranda, noting that any changes would have to be made within the confines of the Supreme Court decision regarding Miranda rights.
Experts have said that the Obama administration is pioneering the use of the exception in terrorism cases.
The full text of the letter is reprinted below.
May 17, 2022
Dear Attorney General Holder,
We, the undersigned organizations, write to express our concern about your recent call to restrict the constitutional rights of individuals in the United States suspected of terrorist activity by seeking to codify or expand the “public safety exception” to Miranda v. Arizona. Current law provides ample flexibility to protect the public against imminent terrorist threats while still permitting the use of statements made by the accused in a criminal prosecution. Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.
As you know, the Supreme Court crafted the “public safety exception” to Miranda more than 25 years ago in New York v. Quarles. This exception permits law enforcement to temporarily interrogate suspected terrorists without advising them of their Miranda rights – including the right to remain silent and the right to an attorney – when “reasonably prompted by a concern for public safety.” It allows federal agents to ask the questions necessary to protect themselves and the public from imminent threats before issuing a Miranda warning. Provided the interrogation is non-coercive, any statements obtained from a suspect during this time may be admissible at trial.
Law enforcement used the Quarles “public safety exception” to question Umar Farouk Abdulmutallab, the so-called “underwear bomber,” and Faisal Shahzad, the alleged “Times Square bomber.” Both suspects reportedly provided interrogators with valuable intelligence during that time and continued to do so even after being advised of their rights. As you observed during your May 9, 2010, appearance on “Meet the Press,” “the giving of Miranda warnings has not stopped these terror suspects from talking to us. They have continued to talk even though we have given them a Miranda warning.”
In the nearly nine years since the attacks of 9/11, the Department of Justice has obtained convictions in more than 400 international terrorism or terrorism-related cases without weakening Miranda or risking the safety of Americans. The “public safety exception” is exception enough. Should the need arise to conduct an un-Mirandized interrogation unrelated to any immediate threat to public safety, law enforcement is free to do so under the Constitution. Miranda imposes no restriction on the use of unadvised statements for the purpose of identifying or stopping terrorist activity. The Fifth Amendment only requires that such statements be inadmissible for the purposes of criminal prosecution. Yet even this requirement has exceptions. Un-Mirandized statements obtained outside the public safety exception may still be used for impeachment, and physical evidence discovered as a result of such statements may also be admissible.
We understand that the Department of Justice must confront serious threats to our national security and is responsible for taking the necessary steps to protect the safety of the American people. For this reason, we understand the Department’s reliance on the public safety exception in the Abdulmutallab and Shahzad investigations. We believe, however, that current law provides all the flexibility that is necessary and constitutionally permissible. Miranda embodies a centuries-old tradition designed to prevent coerced confessions that lead to wrongful incarceration and diminish our collective security. Codifying or expanding the public safety exception would almost certainly lead to the exception being invoked far more often than is strictly necessary and would function as an end run around the constitutional requirements of Miranda. We therefore urge you to reconsider your call for Congressional action to expand the public safety exception.
We would be very interested in meeting with you or your staff to discuss this issue further.
National Association of Criminal Defense Lawyers
Alliance for Justice
American Civil Liberties Union
Appeal for Justice
Asian Law Caucus
Bill of Rights Defense Committee
Brennan Center for Justice
Coalition for Humane Immigrant Rights of Los Angeles
Council on American-Islamic Relations
Center for International Policy
Center for Media and Democracy
Defending Dissent Foundation
Freedom and Justice Foundation
Friends Committee on National Legislation
Government Accountability Project
High Road for Human Rights
Human Rights First
Human Rights Watch
Muslim Legal Fund of America
New Security Action
No More Guantánamos
Open Society Policy Center
Peace Action Montgomery
People For the American Way
Progressive Democrats of America
The Rights Working Group
U.S. Bill of Rights Foundation
Robert Jackson Steering Committee
Roderick MacArthur Justice Center
Witness Against Torture
World Organization for Human Rights USA
From a public relations perspective, Attorney General Eric Holder’s debut on the Sunday morning talk shows was largely a success.
After avoiding the shows for more than a year while various controversies around him festered, Holder largely deflected tough questions about his so-called “nation of cowards” speech about race relations and his withdrawn decision to try Khalid Sheikh Mohammed and other accused 9/11 plotters in New York City federal court.
Instead, he made news with revelations that U.S. investigators have linked the Pakistani Taliban to the failed May 1 car-bombing attempt in New York’s Times Square. He also announced that the Justice Department wants to work with Congress to update the “public safety exemption” to Miranda rights to give federal law enforcement officials more flexibility about when to advise terrorism suspects of their right to remain silent.
“This is in fact big news,” Holder said on “Meet the Press” of the proposed Miranda rights update.
The result were headlines that helped the Justice Department drive its law-enforcement narrative, including the ability of civilian courts to handle terrorism suspects. The Miranda rights initiative, in particular, helped Holder get out front on a story in which he’s largely been reactive, as conservatives have repeatedly questioned decisions to charge terrorism suspects in federal courts rather than in military tribunals.
Holder, appearing on ABC’s “This Week” with Jake Tapper and NBC’s “Meet the Press” with David Gregory, said the Justice Department has developed evidence that shows the Pakistani Taliban played a role in the attempted Times Square attack.
“We know that they helped facilitate it,” Holder said of the Pakistani Taliban. “We know that they probably helped finance it and that he [accused car bomber Faisal Shahzad] was working at their direction.”
Holder also said the Justice Department would be working with Congress to explore ways to update the Miranda system for terrorism cases.
“The [Miranda] system we have in place has proven to be effective,” said Holder on ABC. “I think we also want to look and make determines whether we have the necessary flexibility — whether we have a system that deals with situations that agents now confront.”
The so-called public safety exception to issuing a Miranda warning, which has been under expanded use by the Obama administration, stems from a 1984 court case in which an officer asked a man with an empty gun holster who had allegedly raped a woman where his gun was before issuing a Miranda warning. The Supreme Court allowed the use of the suspect’s pre-Miranda warning statement in court. On Sunday, Holder said the exception, which predates the age of Al-Qaeda and the Taliban, may need to be updated.
“We’re now dealing with international terrorism. I think we have to give serious consideration to at least modifying that public-safety exception,” Holder said on ABC.
“And that’s one of the things that I think we’re going to be reaching out to Congress, 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,” he added.
On the issue of the 9/11 trials, Holder said on ABC it was appropriate for the White House to be involved in the decision about where suspects would be tried.
“I don’t think the decisions are being politicized at all. This is a national security decision and I think it’s appropriate for the president to be involved,” said Holder. He made similar comments on NBC, where he also faced tough questioning from Gregory, who questioned how Holder could put faith in the civilian system while also saying that failure to convict was not an option, and that terrorism suspects wouldn’t be released even if found not guilty.
Said Gregory: “Even with [accused Times Square car-bomber Faisal] Shahzad, before he was charged, you held a press conference announcing that he had confessed. Shouldn’t that be a concern to those who work with you and others who believe, as you say you do, in our civilian justice system?”
Holder said he doesn’t “take back anything that I have said in the past,” and added: “One of the things that we did with regard to that press conference was to get out there early to assure the American people generally and people in New York specifically that the person we thought was responsible for that attempted bombing was, in fact, in custody.”
Both anchors brought up Holder’s February 2009 speech on race relations in which he called the U.S. a “nation of cowards” about not speaking more frankly about race. But they linked it to the tough Arizona immigration law currently under review by the Justice Department.
Of the Arizona law, Holder said on ABC: “A state-by-state solution is not the way we ought to go.” He said he didn’t think the Arizona law was motivated by racism, but said it could be enacted in a way that could lead to discrimination. Read the “Meet the Press” transcript here.
See video below.