The White House has been working with Senator Lindsey Graham (R-S.C.) to craft legislation that would restructure the amount of time interrogators can hold suspected terrorists domestically without reading them their Miranda rights.
On Tuesday, Graham told reporters that he has been in talks with the administration "for quite a while now" on a way to "statutorily codify the public safety provision" under the laws that govern the reading of Miranda. A White House aide confirmed to the Huffington Post that the talks have taken place.
The discussions have centered on essentially expanding and/or firmly configuring the window of time during which law enforcement can interrogate a suspect -- and admit the evidence -- without reading Miranda rights. Currently, the law holds that officials can do this for a limited time period, provided that it is determined to be in the public's safety.
The Obama administration has been pushing the law's limits, interrogating suspected terrorists such as Faisal Shahzad, the alleged Time Square bomber, for periods of time that legal observers say have been longer than those traditionally granted under the public safety exception. Spokesman Robert Gibbs acknowledged in early May that the president was "interested" in "limited flexibility" with respect to laws governing how and when to read Miranda rights. Obama's talks with Graham are the most telling example to date that the White House is intent on getting some legislation through Congress to give it legal and political buffer on this front.
"I think it is something we can do in a bipartisan fashion that would really give more flexibility to people in charge of gathering intelligence and fighting the war," Graham said.
There remain, however, honest legal questions as to what if anything Congress can do with respect to the structure of Miranda rights. When Attorney General Eric Holder first floated the idea that a bill be introduced to expand or modify the public safety exception, The Atlantic's Marc Ambinder said he "was either ignoring the obvious -- the exception is an artifact of a court decision -- or he was attempting to send some sort of a signal to Congress." Ambinder noted that attempts to change the law through legislation would likely end up hitting a brick wall: Dickerson v. U.S. already limits Congress's ability to alter the content and power of the Miranda warning (a constitutional right).
That said, even progressive Democrats on the Hill appear open to the idea of passing legislation that tinkers with Miranda.
"I think it is something that one could legislate because it is essentially a judge-made rule," said Sen. Sheldon Whitehouse, a member of the Senate Judiciary Committee. "It is based on a constitutional doctrine that we can't tamper with. But I think that if the court were to evaluate its judge-made rule in light of a strong consensus from Congress, they may find that the law is actually consistent with the underlying constitutional principle and that the judge-made rule can... adapt to it."
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