Thursday, March 24, 2011

The Obama Administration's New Approach to Miranda in Terrorism Cases

Rick Pildes

Last May, I raised the suggestion in a series of posts on this blog that the administration and Congress might consider codifying the public-safety exception to the Miranda rules to clarify how that exception should apply to those arrested on terrorism-related charges. The aim is to avoid conflicts between legitimate intelligence interrogation and effective criminal prosecution; if there are sensible ways not to have to trade off one of these important goals for the other, we ought to consider such options. I also suggested that legislation of this sort would be a preferable alternative to legislative proposals that would address the intelligence investigation concerns by simply putting all such suspects into military custody and detention. Soon after that, the Attorney General testified before Congress and raised this idea of a legislative approach to Miranda, but Congress did not respond.

I therefore wanted to note that today's Wall Street Journal reports that the FBI has created an administrative process that does much the same thing legislation on this issue would have done. According to the WSJ, which has reviewed a copy of the non-public memo, the new policy applies only in "exceptional cases" where investigators "conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat." The memo also sets up a process that must be surmounted before this power can be used: Department of Justice lawyers and FBI supervisors must give prior approval in the specific case.

The top Democrat on the House Intelligence Committee notes, probably correctly, that the courts would be more likely to accept this kind of clarification of Miranda if it rested on legislation, rather than just administrative action (that doesn't mean courts would not accept the new FBI practice, only that they'd be more likely to with congressional backing). As I said in those earlier posts, I am in no position to know whether the facts on the ground indicate that there is a need to relax Miranda in these ways to enable effective intelligence interrogation; if I were making policy on these issues, I would want to hear from those who conduct these interrogations, from the FBI and other agencies, as well as others. But law is often about trying to accommodate competing values, including adapting prior law to changing circumstances, and I am interested in the question of principle: if there is a legitimate intelligence-gathering need, should Miranda be modified in this way?

Here's one way to test intuitions about this: suppose we could be confident that the interrogations would be lawfully conducted (ie, no unlawfully coercive techniques). There are clever institutional structures one can imagine to help ensure that: the interrogations could be videotaped, or a neutral third-party observer (say, a retired federal judge or others) could observe the interrogation from behind a one-way window. For those troubled by the new FBI policies, would there be any objection in these circumstances? In other words, if we can find ways to preserve the values and functions Miranda seeks to realize, while also reducing the tension between criminal law enforcement and intelligence gathering functions, is there some remaining powerful reason to resist these new FBI policies?


If the unwarned interrogation is completely compartmentalized from the criminal prosecution, there is no need to change policy or write legislation. The only function of a Miranda warning is to make the direct and indirect results of interrogation admissible in a criminal case. The government has been able to make many terrorism cases based only on physical evidence and witnesses and often does not need interrogation results for prosecution.

However, if you are a terrorist subjected to this process, the best strategy is to confess and point the interrogators to any obvious evidence they have not yet found but are certainly going to find. Then your defense can claim that the compartmentalization was defective (even if it wasn't) and ask that the evidence be suppressed.

If you officially expand the rules, rules already stretched will be stretched more in practice. Also, there is some merit in official legislative rules, but it is likely they still would give the executive discretion on when to use them. So, the structural formality will be somewhat flexible in practice.

Miranda is in place to protect against abuse and protect certain rights. The rule change is meant to get around them. Why? To "encourage" more talking "voluntarily" and presumably in some fashion to keep lawyers away.

Videotaping (a useful check overall) and use of ex-judges etc. very well would "ruin" this, if they serve a parallel value as Miranda. That's the point. The government doesn't like the limitation.

The function of the protections for the accused, and their interpretation by the courts, is to remove the incentive for law enforcement to railroad, mistreat, torture, and extort the accused. This does not remove the incentive to get confessions; merely to get false ones: browbeaten ones, or just plain beaten ones.

Historically that was critical because cases were made or missed on confessions.

Modern forensics has reduced the need for, even interest in, confessions. (There are also crazy people who confess to things they didn't do.) Cases are now made or missed on hair follicles.

None of this suggests that Miranda warnings have much to do with torturing terrorist suspects. That's an entirely different question. And we have an answer: it doesn't work. You get false confessions. See here.

The "ticking time bomb" scenario is much loved in TV shows like 24, where torture works and saves the day. In reality, not so much.

So there are two ways of evaluating beating up prisoners, in two different contexts, and neither of them makes the case.

If you want to beat up prisoners, you'll just have to keep on doing it the way you do now: illegally and with no rational justification. Because, say, you like it.

In the meantime, there's no need to square the rights of the accused with the needs of The City. That's a false choice. If you're beating up prisoners, please don't tell us it was to save the City. The facts are otherwise.

So I'd say this whole question misses the mark. There's no issue of law here, how to make it legal and such. There's no issue of public safety here. We pretend there is, for discussion or because it sounds exciting or because some of us sincerely but mistakenly believe it; there isn't.

This is not about law. We can have any law we want. We can have law that gives law enforcement an incentive to mistreat, torture, railroad, and extort the accused. Lots of places do. If that's how we want to be.

A right to silence is facially incompatible with intelligence gathering interrogation.

The Quarles decision involved delaying Miranda for a moment while an officer asked the suspect "where is the gun?"

The FBI has already stretched this exception to 30 minutes and then 3 hours with two terrorists and not obtained any substantive published intelligence on their support networks during those brief periods.

There is no discussion of what further delay if any Justice is contemplating under these new guidelines.

The courts are going to eventually to draw a line limiting such public safety interrogations.

The problem is that good intelligence gathering requires repeated, lengthy interrogations over weeks so facts can be checked and the target asked new questions based on newly discovered evidence.

Unless the suspect is a U.S. citizen, the terrorist should be considered a military combatant who invaded the United States, interrogated by CIA or DIA for intelligence and then tried by a military court under the MCA. The MCA courts have properly excluded evidence gathered under coercion without improperly applying Miranda to a war situation.

Oh, and someone will say: oh, no, this isn't about the accused like you and me, this is about terrorists.

A lovely little way to carve out an exception.

I suggest we'd each of us have a favorite exception, the notable fact being that each of our exception would likely never apply to us. Right?

The nice thing about the rights of the accused is creates the right incentive without exception.

You have no constitutional right to remain silent or to have an attorney present. If the government grants you use-immunity and then brings you in front of a Grand Jury, you are obligated to answer on your own under oath any question put to you about any subject. Remaining silent is then a violation or the law. However, if you are a lawful enemy combatant then you are immune to Grand Juries because international law says you cannot be compelled to give more than your name, rank, and serial number.

If a "right to remain silent" was actually a consitutional right, there would be no Grand Jury exception.

If all the government needs is intelligence and it does not need a confession to a crime (because it has other evidence or a non-criminal basis to detain), then the Grand Jury trick works as well for terrorists as it does for mobsters, it just doesn't work for enemy soldiers.

If one wants to predict how the Supreme Court will rule on the new FBI policies, I think that it turns on each justice’s view of Miranda. If a justice believes that Miranda was wrongly decided and is adhered to only as a matter of precedent (which is certainly the view of 2 and perhaps as many as 5 justices), then he would uphold the new policies. If a justice believes that Miranda was correctly decided and post-Miranda precedent like Quarles was wrong (which may be the view of some justices), then he or she would likely strike them down (although he or she might vote to uphold legislation that provided alternative protections, such as videotaping). For more see here:

Justices that fall into neither category would most likely endorse a balancing approach (which is essentially indistinguishable from pure judicial policymaking). Does the benefit to public safety from allowing unwarned interrogations of terrorism suspects outweigh the risk of coerced confessions? Put another way, is it so important to get information from suspected terrorists that the FBI should be allowed/encouraged to go up to the very edge of the line that separates voluntary from involuntary statements? I could imagine even a couple of the more liberal justices, under the current circumstances, saying yes to those questions.

A legislative approach would be more likely to survive judicial scrutiny, however.

Constitutional rights tend not to be absolute. The fact you are obligated to testify in certain cases doesn't erase a right to remain silent generally any more than free speech doesn't exist because it is not absolute in all contexts.

This isn't a matter of circumstance. At any time the government can decide that intelligence is more important than evidence, immunize the detainee, and bring him in front of a Grand Jury. Only enemy combatants captured outside the US are protected by superceding international law. So the government generally has the absolute power to breach the "right to remain silent" in almost every case provided it is willing to grant immunity. There is no such absolute power to bypass completely any real constitutional right.

The government can't "immunize" me and ask me any question under the sun. I have a right to remain silent. It is limited to the degree that in an appropriate case (and even there certain privileges apply) they can require me to testify.

Outside of the jury room, however, the police cannot force me to talk etc. Testimony in fact is an exception to the freedom of speech, which repeatedly was shown to include freedom from COERCED SPEECH.

Why a compelling state interest overriding a general right doesn't make it "real" is unclear. Immunity is a pretty "real" tradeoff. Other rights have limitations but the person doesn't get something like that in return.

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