'This Week' Transcript: Leahy and Sessions

But then there's also the political which is, we've seen in the past few months, two terror attacks on -- attempted attacks on American soil with Abdulmutallab and now with Shahzad. And the administration is very, very worried about after coming in to office, saying that they are going to shut down Guantanamo of actually having something actually happen here in the United States, looking as if they haven't done enough about it. And I think that's a big part as well.

TAPPER: Greg, why are they doing this?

CRAIG: Well I think there's concern that everybody has that when you have a terrorism suspect in hand, the first thing you want to do is to gather as much information from that individual as possible to protect the public, either to find out if they are co-conspirators working with them or plans for the future. So there's no dispute about that.

The real question in my mind is whether the public safety exception to Miranda is adequate, is flexible. Is there a real need to change the Miranda rule in order to accommodate that requirement? Let's just make it a given that you do want to have that interrogation first and you don't want to be bothered by courts or Miranda rules. And their only question is whether the public safety exception which now exists is sufficiently flexible to accommodate that requirement.

TAPPER: Do you think it is?

CRAIG: I don't know what the administration is planning to do. If the administration is planning to say we want 15 to 30 days without any kind of due process, then I think that's going to be a hard sell.

GILLESPIE: I agree there's a legal and political calculus here that's going on. The legal calculus I think is an understanding by this administration which they should get some credit. They won't say it out loud, but the fact is what they're doing is recognizing that the handling of Abdulmutallab, the underwear bomber on Christmas Day was not well done. And that they faced a problem in Mirandizing him too soon and that hurt their ability to get information. So they are trying to address that.

But the political problem they have is they don't want to embrace the Bush regime and the Bush policies of setting up the enemy combatant system. And you can prosecute or can hold a U.S. citizen as an enemy combatant. We saw that upheld in the fourth circuit in the Padilla case. But they don't want to accept that.

So they're looking for a political calculus here that somehow addresses the problems they faced on Christmas Day but doesn't accept the legal parameters of the Bush administration. That's a real problem for them.

TAPPER: Glenn, what would the reaction be by the Democratic Party if Attorney General Ashcroft had said he wanted to revise the Miranda rules?

GREENWALD: That's the real issue. I mean, the Democrats, including Barack Obama spent the last decade screaming and yelling that what the Bush administration was radical and destructive because they were rewriting our system of justice and our political culture in the name of fears of terrorism. And what you've seen since Barack Obama has been inaugurated is essentially the continuation of many of those very same policies that he himself spent the campaign vehemently condemning. But what's happening now is really quite remarkable, which is those Bush policies that were so controversial were largely aimed at non-citizens.

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