Institutional Process & Counterterrorism

President Obama’s detractors, and “concern trolls” especially, will note with some glee news that the Department of Justice has “pioneered” a new exception to traditional Miranda doctrine, and that they’ll strive to make the exception explicit. The by-now familiar story, repeated exuberantly by the right and moderate left, is that such measures make Obama no better than the hated George W. Bush.

Such glee is premature. We can justly fault President Bush for not just abridging vital constitutional rights, but for doing so in a cavalier manner, as if the rights were of no moment whatsoever. Thus far, neither sin can be attributed to President Obama.

Deferred “Mirandizing,” the only variance sought by Obama’s Department of Justice, has long been permitted under the “public safety” exception. Pursuant to this rule, where questioning is necessary to guarantee the safety of officers or the general public, police can question suspects without warning, and admit the suspect’s responses at trial, even if the responses are incriminating. New York v. Quarles, 467 U.S. 649 (1984). Because I’m not a criminal defense attorney, I don’t know how far the exception goes: surely it must stop short of permitting full, pre-warning interrogation. But if our only objection to President Obama’s conduct of the war on terror is that he makes use of available exceptions to governing law, even if he strains them while doing it, we’re doing okay.

Similarly, Obama’s desire to change the rules of investigations shows that he cares what the rules are. This was emphatically not the case under President Bush. Rather than seeking authorization from a compliant Congress when making major counterterror decisions, at every turn, the Bush administration tried to “go it alone,” without input from the coordinate branches of government, because unilateralism, and the illegality it implied, weren’t necessary incidents to protecting the American public: they were desirable methods of re-asserting the authority of the unitary executive. Bush eventually sought congressional ratification of a number of his schemes, true, but only after the Supreme Court forced him to do just that. For Bush, Congress wasn’t a part of the lawmaking process — it was the contingency plan for dealing with the “activist” judiciary. By bringing Congress into the process, Obama is remedying the greatest of Bush’s flaws.

It’s entirely possible that expanding and institutionalizing the public safety exception to Miranda is the Wrong Thing To Do, from a civil rights perspective. But we can take comfort in the fact that it’s being done the right way. How sad, though, that it was ever otherwise. We shouldn’t be pleasantly surprised when the President adheres to the rule of law: we should expect it.



  1. “We can justly fault President Bush for not just abridging vital constitutional rights, but for doing so in a cavalier manner, as if the rights were of no moment whatsoever. Thus far, neither sin can be attributed to President Obama.

    Two words: Indefinite Detention.

    Another two words: Elena Kagan

  2. It’s not clear that Obama has continued indefinite detention anywhere off the battlefield. And as to the other, huh?

    1. It was stated early on that they planned to create a legal regime around indefinitie detention. I believe Rachel Maddow called it one of the worst blow to civil liberties in American history and ‘far more reaching’ than any Bush era policies.

      Kagan seems to be quite willing to support Bush-era policies and there’s already been some grumbling from the Left on this.

    2. Has anything materialized from that, though? My impression was, no. If she was talking about Bagram, sure. But all else has been quiet.

      And grumbling is by definition premature.

      1. That literally says nothing: it’s a pass through to a Salon article. And Salon’s best points for Kagan’s acquiescence on executive power are that she wrote an article in support of executive power over administrative agencies, and that she so testified at her confirmation hearing for the Solicitor General position.

        The first is a week point, and Greenwald knows it, because he follows it with a sea of disclaimers. The second isn’t as instructive as it sounds. In seeking the Solicitor General’s position, Kagan faces incentives from her employer and from the GOP to overstate her personal fondness for theories approaching, or equating, the unitary executive.

        And, when construing statements made as Solicitor General, or as the nominee, consider that the Solicitor General is, after all, an attorney, expected to zealously advocate for her client’s position. Such advocacy does not imply personal beliefs or a judicial philosophy. Robert Jackson famously disclaimed as Justice positions he’d helped author as Attorney General, because the latter positions were authored by him in his role as an advocate, and did not represent what he thought to be the ideal state of the law. Perhaps we can’t expect such nobility from everyone, but nor can we imagine that it would never exist.

  3. […] the same time, following Obama’s (quasi) law enforcement paradigm, the President has won every high profile case to occur on his watch […]

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