A kudos for the FBI
Richard Willing reports in theWashington Post:
You have the right to remain silent. And the FBI’s J. Edgar Hoover to thank for it.
Fifty years ago this coming Monday — June 13, 1966 — the Supreme Court held in Miranda v. Arizona that the Constitution’s Fifth Amendment, which establishes the right against self-incrimination, also requires police to advise custodial interrogation subjects that they need not answer questions or make statements. A brief filed by the American Civil Liberties Union is rightly credited with supplying the 5-to-4 majority with much of its intellectual ammunition. But Chief Justice Earl Warren’s majority opinion leaned just as heavily on a submission from the FBI, then as now not the most likely of ACLU allies. Virtually alone among law enforcement authorities, Hoover and the FBI argued that warning suspects of their rights was constitutionally sound and advisable and, in fact, had long been bureau practice. The court was impressed; Warren reprinted the FBI’s entire four-page note in his 35-page opinion.
The decision also compelled investigators to inform potential suspects of their right to an attorney and noted that prosecutors should bear a “heavy burden” if they wished to use statements taken without a lawyer present.Miranda has survived attempted tucks, tapers, tweaks and head-on challenges — the late justice Antonin Scalia called Miranda a “milestone of judicial overreaching” in a 2000 decision that failed to overturn it — and after a half-century remains the standard for U.S. law enforcement. Meanwhile, the warning has entered our language as a staple of popular culture and, occasionally, a punch line. Describing his own arrest after a scuffle outside a bar, comedian Ron White once noted, “I had the right to remain silent, but not the ability.”
The decision, which landed in the midst of a national uptick in crime, was wildly unpopular at the time. State and local law enforcement agencies believed that Miranda meant criminal suspects would never again confess to crimes. Hoover knew otherwise. Since at least the mid-1940s, he had required FBI agents to advise suspects of their privilege to remain silent and to have an attorney present during any questioning. The goal, Hoover argued in a 1952 Iowa Law Review article, was to balance the “basic civil liberties of the individual” with the need to “protect the security of the nation.” And there was one more thing: The FBI’s long experience with its proto-Miranda warning had taught that, warning or no, suspects were going to talk.
The brief the agency filed in support of the warnings didn’t square with Hoover’s robust image as a scourge of civil libertarians. He had built that reputation over the previous decades, systematically tracking and compiling data on German Americans, agitators for civil rights, communists and their fellow travelers, real and illusory. In 1947, when President Harry Truman created a “loyalty board” to root out communists in federal jobs, the FBI took the lead in what became hundreds of thousands of security investigations. Ultimately, fewer than 300 workers were dismissed.
But during oral argument in the Miranda case, Justice Abe Fortas asked the federal government’s lawyer for more detail on FBI interrogation practices. Hoover’s written answer to the court was prompt and specific. “Both suspects and persons under arrest” were given warnings “at the very outset of the interview,” he wrote. They could consult with counsel of their choice “or anyone else with whom [they] wish to speak,” could have “free counsel” if they were “unable to pay” and could consult with counsel by telephone, if more convenient. Interviews were terminated promptly if counsel was requested. If an interview subject was “indecisive” about requesting counsel, or when there was a question as to whether he had waived counsel, Hoover wrote, the decision to proceed was “left to the judgment of the interviewing Agent.” . . .