Last week the Wall Street Journal reported that the Obama Administration has okayed new FBI rules that allow investigators to hold some domestic-terror suspects longer than others without a Miranda warning, which the story describes as a significant expansion to the public safety exception to Miranda. NYU Law prof Rick Pildes at Balkinization asks: if there is a legitimate intelligence-gathering need, should Miranda be modified in this way?:
Here's one way to test intuitions about this: suppose we could be confident that the interrogations would be lawfully conducted (ie, no unlawfully coercive techniques). There are clever institutional structures one can imagine to help ensure that: the interrogations could be videotaped, or a neutral third-party observer (say, a retired federal judge or others) could observe the interrogation from behind a one-way window. For those troubled by the new FBI policies, would there be any objection in these circumstances? In other words, if we can find ways to preserve the values and functions Miranda seeks to realize, while also reducing the tension between criminal law enforcement and intelligence gathering functions, is there some remaining powerful reason to resist these new FBI policies?
If you want to beat up prisoners, you'll just have to keep on doing it the way you do now: illegally and with no rational justification. Because, say, you like it.
In the meantime, there's no need to square the rights of the accused with the needs of The City. That's a false choice. If you're beating up prisoners, please don't tell us it was to save the City. The facts are otherwise.
So I'd say this whole question misses the mark. There's no issue of law here, how to make it legal and such. There's no issue of public safety here. We pretend there is, for discussion or because it sounds exciting or because some of us sincerely but mistakenly believe it; there isn't.
This is not about law. We can have any law we want. We can have law that gives law enforcement an incentive to mistreat, torture, railroad, and extort the accused. Lots of places do. If that's how we want to be.
