Attorney General Eric Holder suggested yesterday that Congress should ease up on self-incrimination statutes (the so-called Miranda rule) in cases involving terrorism—so that law enforcement shall have more “flexibility.” The Supreme Court’s Miranda decision rests on a constitutional right in the Fifth Amendment—to wit: “No person … shall be compelled in any criminal case to be a witness against himself….”—and the right to a lawyer, which appears in the Sixth Amendment: “[T]he accused shall enjoy the right … to have the Assistance of Counsel for his defence.”
The presumption behind the language of the amendments (and the Supreme Court’s interpretation of them) is that a principle is involved rooted in fundamental human rights. So at least I understand it, so I would feel myself compelled to explain it if I were teaching this matter in school. We must draw our laws from some kind of fundamental and absolute conception of rights.
But the justification Holder offers for weakening this rule is that of convenience. The New York Times quotes him as saying: “We’re now dealing with international terrorists, and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face.”
This is as nice an example of relativism in ethics as I could wish. And, as such, it is ultimately of the same family, genus, and species as terrorism itself. Because this side-stepping of principle, however small the step, is the abandonment of principle. It says that we shall adhere to our values—when it suits us. And we shall, behind the veils of legislative gestures, abandon them when it suits us.
The way I understand this initiative is that “anything goes.” If those in power can pick and choose which principles they must observe, based only on the sanction of a shifting majority of votes—why then, folks, what they can do, anyone can do. But that’s precisely the ideology behind the terrorist threat—an absolute assertion that the only principle is force. The terrorists use it stealthily, we use it legislatively. In turn that means that we’re no longer a nation of laws—or that we choose to redefine what “law” means. A principled rule becomes a chameleon-like continuous shifting of responses in flexible adaptation to whatever happens. If people are going out to buy guns, I can only nod my approval.