The terror suspect in the Times Square car bomb case, Faisal Shahzad, cooperated with authorities before and after his Miranda rights were read. So it is odd that Attorney General Eric Holder would use the aftermath of Shahzad's arrest to float the idea that Congress should loosen the Miranda rule. The suggestion cuts sharply against the position President Barack Obama and Holder have long maintained: that criminal procedures are capable of handling terror suspects in a way that protects American national security. To change Miranda is to see well established constitutional rights become a victim of al-Qaida.
After the arrest of the alleged Christmas Day bomber, Republicans in Congress were quick to condemn the Justice Department for reading suspect Umar Farouk Abdulmutallab his rights. It makes for a good sound bite to sneer at the idea that terror suspects should be afforded due process of law. But Holder was right then in defending his approach as effective in gaining the cooperation of suspects while upholding American principles.
There is no need for Congress to tinker here. Some flexibility already exists in the timing of when Miranda warnings have to be read. Typically police must remind a suspect at the time he's taken into custody that he has the right to remain silent and have an attorney during questioning, or his statements can't be used as evidence in court. But in a 1984 case, the U.S. Supreme Court established a limited exception of letting police question a suspect to protect the public safety. This exception would justify limited delays in situations where a terror suspect's capture left a host of potentially unknown imminent threats.
Without offering any real specifics, Holder, with the assent of Obama, wants Congress to broaden the public safety exception to deal with terrorists. But Congress doesn't have the power to expand exceptions to the Miranda requirements. The warnings are a judicial creation, designed to protect people from coercive interrogations that violate a suspect's Fifth Amendment right against self-incrimination. Congress cannot circumscribe a constitutional right.
Civil liberties are always easy to shunt aside in moments of fear or for political advantage. Obama came to office promising to stand against those winds, and there is no reason to change course. The capture and questioning of terror suspects in recent months — as well as the hundreds of successful terror prosecutions that took place during President George W. Bush's presidency — demonstrate that the criminal justice system is agile enough to handle these threats.