This post also appears on GAP Homeland Security Director Jesselyn Radack's Daily Kos blog.
Today Charles Krauthammer takes a victory lap, crediting himself for Holder's flip-flop on Miranda:
But, then again, it's not often that Holder publicly embraces an anti-terrorism measure I proposed 48 hours earlier.
Ugh! I don't what's worse, the fact that Holder is considering gutting Miranda for terrorism suspects or the fact that Krauthammer is taking credit for directing U.S. criminal justice policy. What the Obama administration will ultimately do on Miranda is not a done deal, especially considering the outrage that exempting an entire class of suspects from Miranda is even being considered.
Despite previously defending Mirandizing attempted Times Square bombing suspect Faisal Shahzad, last week Attorney General Eric Holder floated a proposal to expand the already-controversial "public saftey exception" to Miranda requirements for terrorism suspects.
Krauthammer's consistent disregard for basic constitutional principles, and his disastrous misinterpretation of case law in today's column, shows he should be no where near any attempts to "modernize" Miranda.
Krauthammer sticks to his ill-fated reliance on Ex parte Quirin to argue trying American citizens as enemy combatants is Constitution-friendly. What Krauthammer omits, either out of ignorance, misinterpretation, or misdirection, is that Quirin, later described by Justice Felix Frankfurter as "not a happy precedent," was an after-the-fact validation of President Roosevelt's issuance of an Executive Order and Proclamation authorizing a military commission to try the German soldiers--two of whom had a plausible claim of U.S. citizenship.
Quirin is far from a license to put an entire class of people into a constitutionally-inferior military tribunal system. In a suit to determine the propriety of military jurisdiction, the Court sided with the Roosevelt administration, holding that the President's order did not conflict with the statutory requirements of the Articles of War. The Court had little choice but to side with Roosevelt as six of the eight defendants in Quirin had already been executed.
Krauthammer also claims that Hamdi v. Rumsfeld allows the President to play criminal duck-duck-goose and designate terrorism suspects enemy combatants at will. On the contrary, the Court in Hamdi reinforced that the U.S. cannot hold U.S. citizens indefinitely without charge or due process, far from an invitation to toss the criminal justice system for all terrorism suspects.
Then, Krauthammer completely dismisses the on-point precedent, Dickerson v. US, asserting that expanding the "public safety exception" differs from the "overturning and liquidating" of Miranda that the Court struck down in Dickerson. He fails to mention that the Court in Dickerson, in an opinion authored by conservative Chief Justice Rehnquist strongly reaffirmed Miranda while slapping down a congressional attempt to gut the long-standing precedent. Call it "modernizing" instead of "liquidating," but any expansion of the "public-safety exception" that will allow law enforcement to exempt entire class of suspects from the constitutionally-based Miranda requirements would undermine over 40 years of Miranda working effectively to protect rights and gain criminal convictions.
It's a good thing Krauthammer never went to law school, because his bastardizing of precedent would fail any constitutional law exam. Krauthammer's self-aggrandizing victory lap aside, Holder seems to be bending the Constitution enough without any help from someone who thinks it is a mistake to use our criminal justice system to try people accused of federal crimes.
Holder's comments may have just been intended to float the idea of expanding the "public safety exception," but judging from DOJ's failure to hold the torture memo authors accountable and its support for privacy-invading(un)PATRIOT Act provisions, Holder likely needs to be pushed in a different direction on Miranda. One that doesn't permit Krauthammer to write self-serving columns of triumph spreading misinformation about constitutional case law.