OPINION: Miranda doesn't give the rights, Constitution does

Sol Wachtler is former chief judge of New York State and teaches constitutional law at Touro Law School.

Having suffered under the oppressive British Star Chamber and the threat of being tortured into confession, our founders framed the Fifth Amendment to the United States Constitution: "No person . . . shall be compelled in any criminal case to be a witness against himself."

This constitutional right is now explained to anyone being questioned in police custody: "You have the right to remain silent. . . . You have the right to an attorney . . . " The landmark 1966 Supreme Court case Miranda v. Arizona established this universal standard. Without that explanation, no statement made by someone in custody can be used to convict that person.

Not everyone has been happy with Miranda and now, in the aftermath of the attempted Times Square bombing, there are new attempts to circumvent it. Its strongest challenge to date came when Congress attempted to overrule it by providing that the warnings were not actually compelled by the Constitution and were, instead, a matter of judicial policy. But, in the case of Dickerson v. United States, decided in 2000, the Supreme Court, speaking through the conservative Chief Justice William Rehnquist, held that "the warnings have become a part of our national culture" and were constitutionally required.

The Supreme Court has been amenable to considering exceptions, however. In 1982, I wrote a decision in People v. Quarles, which suggested that there be a "public safety exception" to the Miranda rule when there was an emergency involved - in that case, finding a discarded, loaded gun in a supermarket. The danger posed to the public provided a compelling reason to question the defendant about the gun's whereabouts without first warning him of his rights. The exception was adopted by the Supreme Court in 1984.

That "public safety exception" was applied by the FBI in its interrogation of Faisal Shahzad after he tried to blow up his car in Times Square. As soon as there was no longer a perceived danger, Shahzad was read his Miranda warnings - which he waived. Law enforcement did what it should have done in protecting both the public and the Constitution.

But for many people in this country today, perhaps even a majority of them, this "public safety exception" is not enough. To them, the threat of terrorism justifies the complete abrogation of heretofore recognized constitutional rights and protections for the duration of the war on terror - a phrase that is, of course, a euphemism for "forever."

Yet, remember that the right to remain silent and the right to have an attorney present during an interrogation are not rights given by the Miranda decision. They were given to all citizens by our Constitution. In a democracy such as ours, it shouldn't be considered outrageous that police - representatives of our government - are mandated to inform citizens of the rights they have under our Constitution to protect them from self-incrimination.

The war on terror has given even respectable politicians the courage to go beyond Miranda and take broader aim at the real target: the constitutional protections given our citizens. Sen. Joe Lieberman (I-Conn.) and others have recently talked about legislation to revoke certain people's citizenship, based on the theory that anyone supporting terror groups could be deemed to have abandoned their American citizenship. I wonder who will determine which organizations qualify as citizenship-strippers?

The post-Civil War 14th Amendment was drawn up with what its drafters thought was a bright-line test for citizenship - "a natural born citizen" - precisely so groups of stigmatized people could not be routinely disenfranchised.

But bright lines tend to fade in the searing heat of exploding terrorist bombs. Lieberman is correct at identifying his target - not the knowledge that individuals have rights, but the rights themselves, which adhere so stubbornly to one's badge of citizenship. Get rid of Miranda and the bothersome rights still remain. Get rid of the rights and Miranda dies on the vine.

Lost in this debate is the fact that the failure to give Miranda warnings means only that the government cannot use a subsequent confession against that defendant. The non-Mirandized information can be used against everyone else. And the defendant can still be prosecuted with other evidence. In the Times Square case, the government has so much evidence against Shahzad that his confession is scarcely needed.

Even if there were no other evidence against Shahzad, the government could merely dispense with giving the warning if law enforcement decided that the information to be gleaned was more important than using his confession to convict him.

There has been little outcry against these latest efforts to weaken Miranda and the proposals to strip citizens of their citizenship. And from one group, at least, the silence is deafening.

The tea party members and their leaders tout smaller and less intrusive government and the militant protection of our liberties from government encroachment. Government is never bigger and more intrusive than when it exercises its police power. Every day we hear from tea partyers that the government cannot be trusted. The word "liberty" hangs heavy in the air above every rally.

Yet, when the government said, "Trust me, I will conduct warrantless wiretaps only on those people we determine are a threat to this country," or some senators said, "Trust us, we will only strip the citizenship from those who support groups we determine are dangerous to this country," there was not a peep of protest from those who now lead the tea parties.

If citizens should be ready to fight back against imminent government encroachment on their constitutional rights, then the tea party movement should be locked and loaded when so many politicians railed that it was an outrage that Miranda informed citizens of the rights they had under the Constitution.

Those who downplay the threat to us from the Islamists as mere fear-mongering are dangerously delusional. There must be thoughtful debates on proposals to consider expanding the emergency exception to Miranda. But the history of this country teaches us that in times of heightened public danger, an overwhelming majority of our citizenry has always been willing and eager to sacrifice other peoples' rights to gain a greater measure of perceived safety.

The yield from those parlous times ultimately proved to be the greatest stains on this great democracy: the Alien and Sedition Acts at the dawn of the 19th century; the Fugitive Slave Act in 1850; the Palmer Raids after World War I; the removal of Japanese to holding camps during World War II.

It's difficult to be thoughtful when faced with the sheer evil and reach of the terrorist movement. But when our cherished rights are involved, thoughtful we must be.