For the first time since news broke that the Obama Justice Department has used a "public safety exception" to effectively interrogate terrorist suspects before reading them their Miranda rights, the White House is elaborating on its legal preferences.
In his daily briefing on Tuesday, White House spokesman Robert Gibbs said the president is "interested" in "limited flexibility" with respect to laws governing how to question a suspected terrorist. This means granting interrogators, under controlled and moderated environments, the right to interrogate a suspect before reading him his or her Miranda rights.
The comments are the closest the White House has come to officially endorsing the use of the "public safety exception" -- which grants interrogators a window of time to interrogate a suspect (and admit the evidence) without reading Miranda warnings, under the rationale that the public's safety is at stake.
Gibbs stressed on several occasions that the president is still committed to the law establishing Miranda rights.
"The president believes that the law that we have in place is an important one," he said at one point. "The president is committed to it, ensuring that we have protections as well as flexibility," he said at another.
But his explicit call for "limited flexibility" adds another layer to an already weighty legal debate over whether Obama administration lawyers are bending the intent of the law. Over the past several days, legal experts have said that they have not encountered previous instances in which the public safety exception has been used during terrorism-related cases. Nor could they recall it being used for the length of time DOJ took with respect to interrogating Faisal Shahzad, the suspected Time Square bomber.
The White House, as Talking Points Memo concluded, had found a "middle ground," between those who stand firm on the constitutionality of reading suspects Miranda rights and those who think the rights should be disposed of when it comes to alleged terrorists.
But is the White House approach legally sustainable? The Atlantic's Marc Ambinder stated firmly in a post that Attorney General Eric Holder "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 also suggested that attempts to modify the law through legislation (which Holder had suggested he'd like to see) are a fruitless enterprise. The case Dickerson v. U.S., already limits Congress's ability to alter the content and power of the Miranda warning (which is a constitutional right, the court determined).
Nevertheless, Gibbs did not suggest that legislative alterations to Miranda and the public safety exception are out of bounds -- though he never explicitly or implicitly indicated that it would be needed either.
"Obviously," he said, "any change that would take place would have to be done legislatively."