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.