Thursday, May 06, 2010

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.


I am not convinced that the Quarles exception is meaningfully wide. In that case there was a loaded gun sitting around somewhere and the court noted the police could be concerned if someone came across it. The police issued a spontaneous question to secure the scene, and then immediately Mirandized the suspect. I don't see how you can stretch those few seconds into minutes let alone hours or days.

The more important issue is how to question a suspect immediately in order to gather intelligence or information on security threats, in the full expectation that his statements will not be admissible against him, but also in a way that does not compromise the admissibility of any statements he makes after he is transferred to the ordinary police, Mirandized, and then questioned in a criminal investigation.

The ability to give national security questioning a first crack at a freshly apprehended terrorist before turning him over to the criminal justice system is a process that needs to be clearly defined.

There has to be a clear separation of personnel, a "Chinese Wall" so that none of the results of the initial interrogation leak through to the criminal prosecution, and a clear transition between the two phases so the suspect knows that nothing he said previously will be used against him and that from this point forward he has him Miranda rights. The Executive has done this in some cases, but perhaps input from Congress would be helpful.

Jose Padilla was detained and questioned for 18 months without Miranda rights. Then after three and a half years he was released, rearrested, Mirandized, and tried for felonies he committed before he enlisted in the Afghan army. None of the statements he made to the FBI or military were introduced in his criminal trial, so they posed no problem. However, in this trial no statements he made anywhere to anyone were admitted.

One place where Congress would be helpful is to clarify when, even though a suspect is arrested in the US, there is reason to believe he has direct ties to an enemy foreign military force justifying the use during his questioning of military personnel who are authorized to participate in a military defense matter but are not authorized to participate in a domestic law enforcement matter. As long as the preliminary national security phase seeks to determine foreign links and not domestic criminal activity, military or foreign intelligence personnel could participate and, since they would have no part in any subsequent prosecution, they could help to form part of the Chinese Wall separating the two phases.

Right now it is unclear if the military can only be called in after it is established that there is a national defense matter, or if they can participate until it is clear that there is no national defense issue and this is simply a domestic criminal matter. Congress should clarify which side of this question we should be cautious to err on.

Today's (5/7/10) WaPo features Ann Telnaes' video "Lieberman's solution: Strip suspects' citizenship" and Tom Toles' political cartoon "Gun rights for terrorists." Query whether Justice Scalia with his opinion/decision in Heller had considered Second Amendment rights of terrorists? Sen. Lieberman's buddy, Sen. Lindsay Graham, doesn't want alleged terrorists to be Miranda-ized but does not want them deprived of their Second Amendment rights. The WaPo also has a Chuck Krauthammer screed-OpEd in support of Ach du Lieberman.

Seriously, after Hamdan and Boumediene, why would you think that this Court gives a damn what Congress enacts? Miranda is a procedure created by the Court and the Court will not relinquish the power to determine its scope.

The post raises really interesting questions about the power of Congress to enact legislative sequels (i.e., statutes that respond to constitutional decisions by the Supreme Court). Congress (and the President) have a role to play in fleshing out the Constitution. Whether Congress can overrule the Court as was the case in Dickerson raises different issues than a proposed statute that seeks to clarify an exception to Miranda.

NY v. Quarles involved an incident that occurred 9/11/80. Such coincidences.

The ruling noted:

"In this case we have before us no claim that respondent's statements were actually compelled by police conduct which overcame his will to resist. Thus the only issue before us is whether Officer Kraft was justified in failing to make available to respondent the procedural safeguards associated with the privilege against compulsory self-incrimination since Miranda"

The case involved "the very act of apprehending a suspect" involving the location of a gun in a public place, requiring decisions "often in a matter of seconds"

An extended bit of questioning, especially while in police custody, would (as HG notes) seems to be stretching the 'public safety exception' to a breaking point. A myriad of suspects are in custody during investigations of ongoing threats.

I can't say really from one case how the rule has been applied, but is it really the case that Miranda doesn't apply if there is a belief there is some ongoing plot? What does 'in motion' mean? The limited case would be asking him at the scene regarding the location of an explosion device.

The Padilla case suggests the problems with stretching this exception too far. I would be opposed to any open-ended legislation of the type that appears to be suggested here. The system seemed to work here w/o it.

And, color me unimpressed by "non-coercive questioning of terrorist suspects, without Miranda warnings." Really now.

BTW, the Volokh link is broken.

Sorry. The link eventually worked.

BTW, he noted at one point:

"The law and the Constitution were followed here. What exactly are you objecting to?"

Given the analysis over there sometimes, his expertise notwithstanding, that doesn't quite do it for me.

As I asked over at Volokh Conspiracy, is there an equivalent "public safety exception" that allows use of torture to find out more information (perhaps as long as such information is not used against the person subsequently in court)? We could call it "Rule 24", I suppose.


Just because we have actual attempts at terrorist attacks, such as the underwear bomber or the Times Square bomber, does not mean that all alleged terrorist plots are actually that. See e.g. the lawyer in Washington State. It cannot be assumed that all alleged terrorists are such.
Furthermore, the public safety exception is addressed at imminent threats ("do you have a gun?"), yet the scope of questioning being sought is not so limited, applying to any intelligence-gathering use, which could involve extended detention and a detailed review of all persons with whom the detainee had contact.
The basic fear of the proponents of a legislated exception is that non-Mirandized statements of a defendant and their fruits will not be admissible against them at trial. (Note that such statements would be admissible against co-conspirators.) The Bush Administration's approach to this was to hold a show trial before a kangaroo court at which Miranda did not apply. The Obama Administration's approach is that prosecutors have the right to get from the defendant's mouth the special circumstances associated with terrorism crimes' expanded sentencing range. That is, not satisfied with the crimes of attempted bombing of an aircraft or possession and attempt to use a destructive device, they are seeking evidence of material support for a terrorist group, etc.
So let's not make the courts the fall guy and our civil rights the victim of excessive prosecutorial zeal. When we've got a terrorist -- ie we've got evidence to support a conviction based on concrete acts -- let a prosecutor give him/her use immunity. There's enough laws on the books to put any actual terrorist away for life. There's enough bad law about material witnesses before grand juries operating through FBI agents remaining from the Weatherman grand juries of the 1970s to allow any amount of non-physical torture and confinement to get testimony. We don't need this Stalinist immorality play of the defendant admitting that his acts opposed the polity and undermined the spirit of the American People.
This camel's nose will soon spread to drugs, pornography, organized crime, stealing cable TV or pirating software, and driving without a seatbelt. The time to call a halt is now. Terrorism does not consist of accepting the beliefs of an organization that advocates acts of terror (this was decided in the McCarthy-era cases), it is undertaking to commit acts of terror. Of that there will be evidence beyond the defendant's own words.

As I understand (or misunderstand)Miranda, it is not about getting information from a suspect: it is about using it in court. I do not believe (and welcome correction if I am wrong) that there's anything to stop law enforcement from questioning a suspect for at least a brief period so long as they don't later use that information in the prosecution.

The key to any change in Miranda would be to establish a sanction on violators sufficiently effective to deter future violations of the right against self-incrimination and the right to counsel: you can use the tainted information if the person who got it goes to jail, loses her job, etc. If Congress is not willing to do that, it has no business messing with Miranda.

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