There's been quite a fuss lately about whether government officials should have to give Miranda warnings to persons arrested for alleged terrorist acts. Attorney General Eric Holder has called upon Congress to enact legislation that would authorize government investigators not to give Miranda warnings in such circumstances.

The primary concern seems to be that if a person in custody receives Miranda warnings, he will be less likely to speak with his interrogators and the government will therefore lose potentially valuable intelligence information that might help combat terrorist networks and prevent future attacks. Although no one seems to have noticed, this concern is completely misplaced.

To understand why this is so, we need to go back to basics. The Fifth Amendment protects the privilege against compelled self-incrimination. The privilege prohibits the government from using any statement that it has coerced from an individual against him in a criminal trial.

In simplest form, this means that the government may not punish a criminal defendant for refusing to take the stand and incriminate himself at his own trial. But it goes beyond that. As the Supreme Court long ago recognized, the same principle must also govern pre-trial interrogations. That is, if the government cannot constitutionally coerce a defendant to incriminate himself at trial, it follows that it cannot constitutionally use at trial a confession that it has coerced from him at an earlier stage of the proceedings. For example, the privilege prohibits the government from using against a criminal defendant a confession that it beat out of him prior to trial.

It is often difficult to know, however, when a confession was given voluntarily and when it was the product of coercion.

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