I’m a little confused. In Dickerson v. United States, the Supreme Court 7-2 held that Miranda, long recognized as a prophylactic against police misconduct, was in fact a constitutional right. Congress could not abrogate that right by staute. How can the President contract that Constitutional right, in this case the “public safety exception,” via a memorandum or regulation? Isn’t it the Court’s prerogative (for better or worse) to make that call?

From the WSJ:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades. . . .[The Good Faith] exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.. . .

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

This change stems from the Christmas Day 2009 attempted suicide attack, where the would-be terrorist Umar Farouk Abdulmutallab was read his Miranda rights after an hour of interrogation. After the warnings, he lawyered up.

The article notes that the DOJ thinks this Change can be done without Congressional authorization. Congress unsurprisingly thinks it can be done with legislation.

The Justice Department believes it has the authority to tinker with Miranda procedures. Making the change administratively rather than through legislation in Congress, however, presents legal risks.

“I don’t think the administration can accomplish what I think needs to be done by policy guidance alone,” said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. “It may not withstand the scrutiny of the courts in the absence of legislation.”

If this is a Constitutional right, how can Article I or Article II change it? Wasn’t that the entire point of Dickerson. That 18 U.S.C. § 3501 was unconstitutional because it statutorily limited a Constitutional right?

What am I missing here?

Update: Commenter Jacob Berlove writes:

The last sentence of the article: Also unchanged is the fact that any statements suspects give during such pre-Miranda questioning wouldn’t be admissible in court, the memo says. If the statements won’t be used in court, what’s the big deal?

My reply:

Is it that simple? If the government does not seek to use the evidence in Court, they can ignore the Constitutional right? Isn’t the point of Miranda to deter police misconduct–not just to prevent its admission in Court. I don’t think the US would need whatever statements the Christmas Day bomber made in order to convict him. Thus, with impunity, they could ask any sorts of questions notwithstanding Miranda, and convict him just the same. It seems they can have their cake, and eat it too.

This position really seems to defeat the purpose of Miranda. I suppose one day the Court will have a chance to opine on this issue. But how? There won’t be a motion to suppress because these statements will never be introduced. Perhaps under a 1983 action for violation of civil rights? That won’t get very far. Perhaps a due process challenge? It seems any proceeding would be collateral to the conviction. In essence, this action is shielded from any meaningful judicial review (I think).