Effort To ‘Modernize’ Miranda Looks Dead, But DOJ Wouldn’t Release New ‘Guidance’


Nine months after it was first floated by the Obama administration, a plan to “modernize” Miranda rights doesn’t seem to be going anywhere in the legislative branch. But Attorney General Eric Holder issued a guidance a few months ago that the Justice Department says sets no specific time limit on the so-called public safety exception.

The Justice Department has indicated that the guidance, which is still not public, takes care of most of the issues about which they were concerned without any input from Congress or the courts.

“While law enforcement has been employing this practice for some time – including during the Dec. 25 attempted bombing, we wanted to make clear this guidance and undertook process to refine it and once that process was complete – sent it out,” Justice Department spokesman Dean Boyd told TPM.The Obama Justice Department, which pioneered the robust use of the public safety exception, has refused to release the specific guidance to the public, as Justin Elliot reported even as it apparently makes more use of it than ever before.

The “public safety exception” allows law enforcement officials to question a suspect if they believe their is an ongoing threat to public safety. Suspects are typically required to be informed of their right to remain silent and to have an attorney. But a 1984 Supreme Court case allowed statements made by a suspect prior to him being read his rights to be entered into the record because the court found there was an ongoing threat to public safety.

Holder first revealed the existence of his guidance in an interview with Charlie Savage of the New York Times. Savage wrote that Holder “spoke vaguely about continuing conversations with lawmakers,” and revealed the guidance the department sent to agents emphasized that they could question terrorism suspects about immediate threats under existing law.

Holder’s guidance doesn’t change the law, as that’s not something the executive branch has the power to do on its own. But with the administration’s attempt to modernize Miranda finding no real friends in Congress, it might be the most progress that is made on the issue.

“We look forward to working with Congress on appropriate improvements to necessary and appropriate law enforcement authorities,” Boyd said.

But a spokeswoman for Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) told TPM that his office has not heard from the Justice Department on the issue.

When Holder first floated the idea of modernizing Miranda in the spring, everyone from civil liberties advocates to California Republican Darrell Issa criticized Holder for suggesting Miranda needed to be reformed.

Here’s a longer statement from Boyd on Holder’s guidance:

Law enforcement’s primary objective is to keep the American people safe and that includes preventing terrorist attacks against the United States. The evolving nature of the terrorist threat demands that we keep the men and women on the front lines advised of all lawful and appropriate tools available to them to identify, locate, detain, and interrogate terrorism suspects.

As demonstrated most recently after the attempted terrorist bombings on 12/25 and in Times Square last spring, 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. Because of the complexity of the threat posed by terrorist organizations and the nature of their attacks — which can include multiple accomplices and interconnected plots — we have formalized guidance that outlines the appropriate use of the well-established public safety exception to providing Miranda rights. To ensure that law enforcement is aware of the flexibility that the law gives them in these circumstances, the guidance has been distributed to relevant agencies.

We have a responsibility not only to the American people to do everything in our power to prevent attacks, but also to our law enforcement personnel to inform them of all the tools at their disposal to do their jobs. The terrorist threat against the United States continues to evolve in ways that present more complicated and dangerous challenges than we have faced in the past. We must continue to do everything in our power to prevent attacks, confront the terrorist threat head-on, and secure our country, and we will do so in a way that is consistent with the rule of law.

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