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How real is this plan to revise Miranda?

As you know, Eric Holder startled the political world last Sunday when he announced that the administration plans to reach out Congress and develop a plan for a broad exception to Miranda in the case of terror suspects. Holder pronounced this "big news."

But is it? How real is this plan? How likely is it to go anywhere any time soon? After talking to some Dems on the Hill, the answer is this: Not bloody likely.

I just spoke to Rep. Jan Schakowsky of Illinois, an ally of the administration and member of the House intelligence committee, who told me Dems are skeptical about the idea, because they don't yet see how such a plan would even work.

"There's definitely skepticism," Schakowsky said. "Miranda warnings are a Constitutional right. Congress can't overrule them."

Schakowsky added that there may be some kind of way to play around with the so-called public safety exception, which allows interrogators more pre-Miranda questioning in certain circumstances. But she said that if there were a way to do this, she hadn't heard about it yet from the administration or anyone else.

"I don't know if there's a way to clarify what a public safety exception would mean and how that would work," Schakowsky said, adding that she and other House Dems hadn't heard any specifics from the administration yet.

Holder said the administration would be reaching out to members of Congress to develop this proposal. But an aide on the Senate Judiciary Committee, which would be the first stop, said they'd heard nothing yet. And even so, with the Senate consumed by a Supreme Court nomination, there's just no way that committee would move on something like this right now.

Separately, the chair of the House Judiciary Committee, John Conyers, poured a pail of cold water on criticism of Miranda at a hearing yesterday. And Conyers is not the kind of guy who does stuff he doesn't want to do, even if the administration is pushing him to do it.

It's always possible that key House Dems could warm to the idea -- if they see a specific proposal. But absent such a proposal, it's simply impossible to gauge whether it's even possible, let alone whether leading Dems will support it. And in any case, civil libertarians think that a battle over a change like this would go all the way to the Supreme Court.

For now, let's keep this one in the we'll-believe-this-when-we-see-it files.

By Greg Sargent  |  May 14, 2010; 12:43 PM ET
Categories:  Foreign policy and national security , House Dems , Senate Dems  
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Rep. Schakowsky is wrong. Miranda warnings aren't required by the Constitution; they're required by case law interpreting the Constitution. Case law also provides for certain exceptions, and there's nothing wrong with Congress passing a law to codify or even expand an exception. Of course, any such law would almost certainly be challenged, and the Supreme Court (because ultimately it would get there) might well decide it's unconstitutional. But that's not the same thing as saying the Constitution requires Miranda warnings.

That said, I don't know why the Administration is doing this -- other than the obvious reasons: politics and "optics." The public safety exception already exists, and it seems likely that it will end up being expanded by the courts to the extent necessary to reflect the greater threat to public safety posed by terrorists as opposed to, say, a lone gunman in a liquor store.

Posted by: LynnDee227 | May 14, 2010 12:53 PM | Report abuse

I'd say you're right Lynn, this is politics and optics only. A means to nullify right wing poo being flung at them.

On a side note, Greg, this would be a great daily wrap up article by Nation Journal Magazine:

Repairing The Job Machine
More jobs might be created this year than during George W. Bush's presidency.

If the economy produces jobs over the next eight months at the same pace as it did over the past four months, the nation will have created more jobs in 2010 alone than it did over the entire eight years of George W. Bush's presidency.

Posted by: mikefromArlington | May 14, 2010 12:56 PM | Report abuse

Mike -- thanks for that link. awesome stuff. will include later.

And thanks Lynn. I'm still trying to get to the bottom of how this would work.

Posted by: Greg Sargent | May 14, 2010 12:58 PM | Report abuse

Greg, They're not really revising Miranda. What they're revising is the public safety exception for Miranda.

Right now the law holds that 50 minutes and that's it for suspects, and they have to be read their rights. To change this I'd imagine that Holder would want clarity as to what they should do for longer than that in these national security decisions.

Remember, this would NOT alter the fundamental right for suspects to be read Miranda.

I'm just tired of seeing people write changing "Miranda" when that's not the case.

Posted by: calchala | May 14, 2010 1:10 PM | Report abuse

Let me clarify - The administration couldn't alter Miranda if they wanted to. It's in the bill of rights.

That said, I wouldn't focus on the dems as to whether they're writing it. I would look to Lindsey Graham on this.

Posted by: calchala | May 14, 2010 1:24 PM | Report abuse

calchala -- they would have to reach out to leading Dems to help write this, given how controversial it will be among them

Posted by: sargegreg | May 14, 2010 1:32 PM | Report abuse

No, Miranda is not in the Bill of Rights either. It's in case law interpreting the 5th Amendment -- which, yes, is in the Bill of Rights. But the Miranda warnings are not. The Founders did not know from Miranda(!), which refers to a 1966 Supreme Court case, Miranda v. Arizona.

Posted by: LynnDee227 | May 14, 2010 1:33 PM | Report abuse

No, the Miranda warnings are not in the Bill of Rights either. The requirement for such warnings comes out of case law interpreting the 5th Amendment -- which, yes, is in the Bill of Rights. But the Miranda warnings are not. The Founders did not know from Miranda(!), which refers to a 1966 Supreme Court case, Miranda v. Arizona.

Posted by: LynnDee227 | May 14, 2010 1:34 PM | Report abuse

" we'll-believe-this-when-we-see-it files"

Maybe Holder should have kept his mouth shut.

Posted by: wbgonne | May 14, 2010 1:34 PM | Report abuse

Actually I think there's a circuit split on the time limit (or whether there's a time limit?) on the public safety exception.

Posted by: LynnDee227 | May 14, 2010 1:35 PM | Report abuse

Someone else said it already; it's about "politics and "optics." Holder has simply not been very good, has he?

Posted by: sbj3 | May 14, 2010 1:54 PM | Report abuse

Just a thought, but there's a chance that how they codify this won't be any different from what they're doing now, and that maybe the 'changes' would simply setting very specific legislative guidelines regarding the public safety exception in order to FORCE future administrations to mirandize terrorist suspects.

You know, because these guys who don't believe in any amendments besides the 2nd, 10th, and sometimes 9th will sooner or later probably end up in power again.

Posted by: holyhandgrenaid | May 14, 2010 1:59 PM | Report abuse

The Constitution gives the Supreme Court the authority to decided cases or controversies arising under federal law. Miranda is a decision that interprets the meaning of the Bill of Rights. Hence, it is a constitutional rule. Under the idiot interpretations I have seen here, are rights would be meaningless, because they are all stated broadly in the Constitution. The Court gives them specificity.

Posted by: darrren12000 | May 14, 2010 4:04 PM | Report abuse

Darren, I'm unclear on what you're saying. Yes, Miranda v. Arizona interprets the Constitution (in this case, the 5th Amendment proscription against compelling someone to testify against himself). Under Miranda, evidence cannot be admitted at trial that comes from a "coerced" statement -- or, under this particular case, a statement taken from the defendant before the Miranda warning is read. (Note that this means, among other things, that it is perfectly fine to question someone without giving the Miranda warning -- you just can't then use that statement at trial.)

Anyway, there are exceptions, one of them being the public safety exception, so that a statement given before the Miranda warning is given but in response to questioning that fits within the public safety exception can be admitted at trial (subject of course to the judge finding that the exception applies).

The exceptions are also set forth in case law.

There is nothing wrong with the Congress deciding to codify the public safety exception or even trying to expand it to fit what they imagine would be a broader application of the exception where it's someone suspected of a terrorist act who's been taken into custody.

Now, should the Congress decide to take that on, it would be subject to challenge and almost certainly would be. Then the court -- and ultimately the Supreme Court -- would pass on whether the statute was constitutional.

Do you disagree with that? Do you picture it would or should work a different way?

Posted by: LynnDee227 | May 14, 2010 5:11 PM | Report abuse

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