Should Congress Codify The Public-Safety Exception to Miranda for Terrorism Cases?

Rick Pildes

Constitutional law already permits law-enforcement officials to question a suspect in custody, without Miranda warnings, if public-safety considerations justify doing so. For at least 25 years, it has been clear that law enforcement does not have to provide Miranda warnings before asking a suspect questions that, as the Supreme Court has put it, are “reasonably prompted by a concern for the public safety.” Thus, if the FBI captures a suspected terrorist bomber, and has grounds for concern that other attempted bombings might be in motion, the FBI can non-coercively interrogate the suspect for information about those other suspected plots without giving the suspect Miranda warnings. One crucial consequence is that any statements the suspect makes during that questioning that also incriminate himself can be used against him in a later criminal prosecution.

Yet the Court has recognized and elaborated the public-safety exception in cases unlike many of today's terrorism cases, and thus the boundaries of the exception in the terrorism context remain unclear. When the FBI or other government agencies capture a terrorist suspect, they will often want to question him or her for two related, but different kinds of purposes: (1) for information that will protect the public against any immediate security threats and (2) for more general intelligence about others who might have assisted the suspect in the (completed or attempted) act of terrorism for which he has been apprehended, about the nature and organization of the terrorist groups he or she is associated with (if any), and the like. While the public-safety exception permits pre-Miranda questioning for the first purpose, how that exception applies to this second purpose is far from clear.

Is that a problem for effective counterterrorism efforts? Before addressing that question, it is important to clear up a common confusion. There is not much doubt that the FBI can non-coercively question a captured suspect for more general intelligence information, without Miranda, if the government does not use any of the suspect’s testimony to incriminate him at a later criminal trial. Constitutional law does not impose any free-floating, all-purpose, affirmative obligation on law-enforcement officials to provide Miranda warnings anytime they have a suspect in custody; as Orin Kerr recently pointed out, constitutional law imposes only the more specific obligation not to use any incriminating statements taken from a non-Mirandized suspect against him at his later criminal trial. If the FBI and other agencies simply use the information to go after the terrorist organization and other suspects – if the FBI gives this information to the government of Pakistan, for example, which then uses it to capture other suspects there – the fact that this information was obtained through non-coercive questioning, in the absence of Miranda, obviously does not create any legal problem.

But suppose counterterrorism experts do believe there is a conflict between effective questioning of a suspect for general intelligence information, provision of Miranda warnings, and the ability to effectively prosecute that suspect criminally. I have spoken with interrogators of high-level terrorist suspects from the FBI and the NY Police Department’s Counterterrorism Unit, as well as prosecutors, and I have heard a range of views on that question. I do not have the expertise, nor consider myself well-informed enough, to answer that empirical question. But if policymakers do come to the conclusion that a serious conflict of this sort exists, and that policy should be changed to mitigate this conflict, what would be the way of doing so that most directly centers in on this problem?

In my view, the way to do so would be for Congress to enact legislation to define the contours and boundaries of the public-safety exception to Miranda in terrorism cases. The public-safety exception already exists: the question is how it ought to apply in contexts, such as terrorism investigations, in which there is uncertainty because the courts have not yet had to define the scope of the exception. Congress could define the circumstances in which law enforcement can engage in non-coercive questioning of terrorist suspects, without Miranda warnings, for purposes of gathering general intelligence information, purpose (2) above, while still being able to use any statements against that suspect at trial. Informed by counterterrorism experts, Congress could specify the time period in which such questioning is necessary and permissible (hours? a day? several days?). Congress could consider authorizing a brief period of initial, non-Miranda interrogation, but then require law enforcement to get judicial authorization for any further period of such questioning. In other ways, Congress and the President could codify what these two institutions jointly believe is the appropriate and necessary contours of an intelligence focused, non-Miranda period of questioning.

Ultimately, the Supreme Court would have the final say as to whether legislation that provides greater detail about how the public-safety exception applies to terrorism cases is compatible with the Fifth Amendment privilege that Miranda is designed to protect. But experience shows that the Court would give great weight to any judgment on this kind of national-security question jointly endorsed by Congress and the President. If there is a strong need to permit law enforcement to have a period of time to question for intelligence information without Miranda warnings, it would be better to have this done not through ad hoc guesses from the FBI in each case as to what’s permissible, or unilateral executive-branch action, but through legislation. As I and many others have argued since Sept. 11th, the courts have been most willing to accept national-security policy judgments when they are the product of legislation.

Again, I do not know whether any clarification of how Miranda applies to terrorism cases is empirically necessary. But if so, there are two further advantages to Congress addressing this issue directly. One is that legislation could provide clear groundrules and guidance in advance to law-enforcement officials, who should not have to make these rules up as each new attempted attack arises. The other is that, if Miranda is a concern, Congress ought to focus first on policies that address that issue directly, in a targeted way, rather than some of the far more extreme proposals now emerging, such as stripping arrested citizens of their citizenship, merely to ensure that law enforcement be able to question them effectively.

UPDATE: I did not want to prolong the initial post unduly, but let me note here that the last time Congress attempted to legislate in the precise area of Miranda, its efforts were struck down by the Court in Dickerson. Yet nothing the Court said in Dickerson suggests that Congress is powerless to enact any legislation affecting bearing on the Miranda regime. The problem with the statute at issue in Dickerson was that it essentially supplanted the Miranda requirement altogether, mandating instead a totality-of-the-circumstances analysis that looked very much like the very regime that Miranda had replaced when it was decided. In contrast, legislation specifying some contours of an already judicially-recognized exception to Miranda as it applies to national-security cases would not pose nearly the same threat to the Miranda regime itself. Miranda’s basic constitutional footing, reaffirmed by the Dickerson Court, would remain; Congress and the President would together simply have filled in the details of an aspect of that regime that the Court has recognized. And just as important, the statute in Dickerson was designed for routine crimes; by contrast, a statute specifically designed to address terrorism investigations would be more likely to receive some of the deference the Court historically has given to statutes in the national-security area.
Posted 9:00 AM by Rick Pildes [link]