Monday, October 21, 2013
Bill Otis has this post at Crime & Consequences. In part:
But the substantive stretch for Quarles is actually the lesser of the problems the Attorney General's interrogation policy creates. The greater problem -- at least in Constitutional terms as they are presented in the post-Dickerson world -- is that the political branches cannot on their own create or expand exceptions to Miranda. We know this not merely because the Dickerson Court told us, but because, in an earlier incarnation -- as Deputy Attorney General when Dickerson was briefed -- Eric Holder did too.
The subtext of Mr. Holder's current policy seems to bet that Dickerson didn't really mean what it said, and that, not only can Miranda's warning requirement be modified by a branch other than the judiciary, it can be massively transfigured by a single agency within the Executive Branch. Indeed, the Department's stance arguably goes beyond merely modifying Miranda and/or expanding Quarles; it would, as some liberals have observed, seem to create a whole new category of "terrorist interrogation."