Quirin (1942) allowed a U.S. citizen engaged in sabotage on U.S. soil to be tried and convicted as an enemy combatant. Hamdi (2004) upheld the designation as enemy combatant of a U.S. citizen picked up on the battlefield in Afghanistan.
It is true that the Supreme Court has not recently ruled whether that applies to a U.S. citizen apprehended committing an act of war on American soil. But why not press the court to decide? After all, had Shahzad's car bomb gone off, Times Square would indeed have been turned into a battlefield.
Nonetheless, this administration seems intent upon using the civilian legal system rather than designating caught-in-the-act terrorists as enemy combatants. I think it's a mistake, but they will be in power for almost three more years, possibly seven. In the interim, therefore, we have to think about how to adapt this administration's preferred domestic-judicial model to the real world.
The way to do it, as Holder has come to understand, is by modifying Miranda.
The usual objection is that the courts will reject such a modification. The 2000 Dickerson case is cited to suggest that the Supreme Court will not countenance congressional intrusion on its jurisdiction over constitutional protections against self-incrimination.
But what Dickerson struck down was a provocative congressional attempt to simply overturn and liquidate Miranda. Expanding the public safety exception would be no such affront. It would be acting on the Supreme Court's own Miranda adaptation in Quarles (1984) -- the public safety exception -- and applying its principles to the age of an ongoing campaign of mass attacks upon civilians. Protection from that requires information not just about ticking bombs but about future bombs.
The ACLU is predictably apoplectic about Holder's "big news." But the idea is supported by an impeccably liberal attorney general, progressive think tank king John Podesta and Republican Sen. Lindsey Graham (who is working to draft such legislation) -- and that's not even counting us troglodytes on the right.
Modernizing Miranda would garner widespread public support as well as bipartisan congressional majorities. Go for it, Mr. Attorney General.
Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.
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