Legislating Miranda Rights for Terrorism Cases?

Attorney General Eric Holder suggested today that the Obama Administration may push for legislation expanding the public safety exception to Miranda for use in interrogations of terrorist suspects:

The Obama administration is considering changes to the laws requiring police to inform suspects of their rights, potentially pursuing an expansion of the “public safety exception” that allows officers to delay issuing Miranda warnings, officials said Sunday.

Attorney General Eric Holder, in his first appearances on Sunday morning news shows as a cabinet secretary, said the Justice Department is examining “whether or not we have the necessary flexibility” to deal with terrorist suspects such as the Pakistani-born U.S. citizen who tried to detonate a car bomb in Times Square last weekend.

“We’re now dealing with international terrorism,” Holder said on ABC’s “This Week.” “And if we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception.”

This picks up an idea that I think was first suggested a few days ago by Rick Pildes over at Balkinization.

As a legal matter, I find this idea puzzling.  Neither Miranda nor the Quarles public safety exception to it are statutory.  Rather, they are constitutional decisions that the Supreme Court has adopted.   And the Supreme Court has been pretty clear that Miranda doctrine is up to the Justices, not Congress: As the Court put it in Dickerson v. United States,  530 U.S.  428 (2000), “Miranda announced a constitutional rule that Congress may not supersede legislatively.”

Now, perhaps the courts would broaden the public safety exception to Miranda in terrorism cases if the Administration made the case for it.  Indeed, I think it’s quite likely that today’s Supreme Court would be willing to adopt as a matter of constitutional law pretty much what the Administration wants as  a matter of policy without any legislation.   There just needs to be a case, and DOJ needs to make the argument.   But I don’t really see why the Justices would care about a statute in this area if one were passed.    I don’t see it relevant as a formal legal matter.  And just from the standpoint of predicting votes, I don’t think it would impact how any of the Justices would vote.

There is one possible legal benefit to passing a statute in the area:   The existence of a statute might might provide a near-term back-up argument against suppression.  If the Justices reject the broad public safety exception, DOJ  could then argue in favor of a Miranda version of the good-faith-reliance-on-a-statute doctrine seen in Fourth Amendment cases like  Illinois v. Krull, 480 U.S. 3450 (1987).  Maybe.  But otherwise I don’t see a statute making much of a difference as a legal matter.  Of course, the political picture is different — it’s not hard to see why the Administration would want legislation in this area to avoid controversy over its use of Miranda in future terrorism investigations.  But as a legal matter, I don’t quite see it.

Incidentally, one area that Congress could change would be Rule 5(a) of the Federal Rule of Criminal Procedure, which requires that a “person making an arrest . . .  must take the defendant without unnecessary delay before a magistrate judge”.   In the pre-Miranda era, the Supreme Court held that confessions made “during periods of detention that violat[e] the prompt presentment requirement” of Rule 5(a) cannot be admitted.  A lot of people thought that this pre-Miranda doctrine (known as the McNabb-Mallory rule) was eclipsed by Miranda in 1966.  But the Supreme Court somewhat surprisingly revived the rule, at least somewhat, in Corley v. United States, 129 S.Ct. 1558 (2009).  Although Congress cannot change Miranda doctrine, I gather under Corley that Congress is free to change Rule 5(a).