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Thursday, April 7, 2011


At this year’s PJP event in March, the moot court considered expanding the “public safety exception” to reading Miranda rights in terrorism cases. I authored the hypothetical for that moot and you can watch the oral argument here. Since then, the Wall Street Journal obtained an FBI memorandum delineating circumstances in which its agents can interrogate terror suspects without advising them of their Miranda rights. There have been three types of reactions to the memo. Many on the Left see it as the gutting of Miranda. “With a swoop of a pen — more than nine years removed from the 9/11 attacks — Barack Obama has done more to erode Miranda than any right-wing politician could have dreamed of achieving,” wrote Glenn Greenwald in Slate. Many on the Right, who think the warnings cause terrorist suspects to clam up and deny interrogators crucial intelligence, see it as a blow for national security. Then there is a third camp that thinks this is much ado about nothing.

After reading over the memo, I confess, I’m solidly in the third camp.

The guidelines allow agents, when interrogating “operational terrorists” to ask questions “reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.” Using the language of the memo, an “operational terrorist” is defined as “an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.”

The interrogator is authorized to ask “questions about possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks.”

Once the agents have asked “all applicable public safety questions” they have two choices: either read the suspect his Miranda rights or, in exceptional cases, they may request permission from headquarters to continue with the unwarned interrogation.

Those who claim the guidelines eviscerate Miranda appear to have slept through the last three decades of judicial assault on the doctrine. These guidelines do little new; rather, they are little more than a reiteration of a 25-year old loophole known as the “public safety exception” that the Supreme Court articulated in Quarles v. New York. In that case, police officers chased a reportedly armed man around a store. After tackling him, they frisked him and noticed an empty gun harness. Without reading him his Miranda warnings, the officer asked him where the gun was, eliciting the response “The gun is over there.” Based on that reply, he was subsequently convicted of criminal possession of a weapon. Quarles appealed his conviction, arguing that his un-Mirandized reply was inadmissible. The Supreme Court disagreed. Locating the loaded gun, the Court concluded, was a matter of public safety: someone could happen upon it or an accomplice might make use of it. Where police officers ask questions “reasonably prompted by a concern for public safety” (look familiar?) — as opposed to a desire to elicit incriminating testimony —Miranda warnings need not be read.

As an aside, I think the reasoning in Quarles is strained to the point of disingenuousness. Quarles had been cuffed. The uncontested evidence showed that the police did not suspect an accomplice was lurking about. In fact, the police felt comfortable enough in their security to put away their guns before questioning him. The arrest took place in the middle of the night, so the store was devoid of customers who could stumble across the gun. And, in any event, the police — who knew the gun was discarded nearby — could have cordoned off the store and searched for it. As noted by the dissent, it is baffling how the Court found a threat to public safety on these facts.

But, alas, Quarles is the law of the land. And the FBI memorandum is a cut-and-paste job (quite literally) of its conclusion.

Many have asserted that the memo embraces a broad reading of Quarles, but that begs the question: by what plausibly narrow view of Quarles is an agent obligated to provide Miranda warnings before asking an “operational terrorist” questions about an “imminent” attack without Miranda warnings? If the weightiness of a public safety concern is a product of magnitude of harm multiplied by probability of occurrence, Quarles sets a low bar: the harm there was minimal and entirely speculative. It’s hard to see how an impending terrorist attack falls short of that bar. One possible distinction is that Quarles involved an on-the-scene, impromptu questioning that consisted of one query, whereas the guidelines contemplate a more extended interrogation in a more traditional custodial setting (i.e., a police station). But that strikes me as a distinction without a difference. So long as the questions are exclusively aimed at neutralizing an imminent threat to public safety (i.e., no stray questions about what the suspect properly filed his taxes) it should not where they are asked or how extensive the interrogation is.

And once questions directed at threats to the public safety are exhausted, officers must Mirandize the suspect before they can use any further statements against him in court. True, FBI agents can request permission from headquarters to continue with an un-Mirandized interrogation, but that is nothing new. Miranda is a rule of admissibility: it has never prohibited officers from asking un-warned questions. It merely prohibits the resulting statements from being admitted as testimony in a subsequent criminal case. The guidelines have no effect on that rule.

The exercised response to the guidelines — from both Left and Right — is largely based on a series of misconceptions about the doctrinal operation of Miranda. Miranda warnings are essentially a mini-tutorial of your constitutional rights under the Fifth and Sixth Amendments. Eliminating Miranda warnings does not mean you suspend the rights that those warnings enumerate. Even in a ticking time-bomb scenario, a suspected terrorist has the right to remain silent and the right to an attorney. And if an officer violates one of those underlying rights—say, by coercing him into speaking when he’s signaled his intent to stay silent—the resulting statements will be inadmissible, no matter how severe the threat to the public safety.

The significance of this is two-fold. First, since a majority of people have been essentially pre-Mirandized by re-runs of the television show “Law and Order,” the practical impact will be relatively small. According to one study, 95% know they have a right to a lawyer; 81% know they have a right to remain silent. (Other studies show that Miranda is like a Latin liturgy to Catholic laity: while many have it memorized, large percentages don’t really understand what it means. But that’s a story for another day). Of course, officers might get lucky and capture a terrorist suspect among the 19% who don’t know they have a right to remain silent. But if someone is sophisticated enough to plan a terrorist operation, it stands to reason they are familiar with the most famous totem of American law enforcement. (The Al-Qaeda training manual, for example, is full of suggestions on how to outflank interrogators).

Second, it means that even under the guidelines interrogators cannot subject terrorist suspects to the third-degree. Even in cases where police officers are excused from reading suspects their Miranda rights, there is a separate constitutional barrier that prohibits officers from using coercion during the interrogation. Examples of coercion that render statements inadmissible include: sleep deprivation, violence, threats of violence, round-the-clock interrogation sessions, and even vague offers of leniency in exchange for a confession.

Another misconception in the press is that the memo prolongs the period that FBI agents can hold terror suspects. This is flat wrong. The memo explicitly provides that presentment before a judge “may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.” (This was not an act of Executive benevolence: the Supreme Court recently affirmed in Corley v. United States that confessions are inadmissible if given after an unreasonable delay in bring the suspect before a judge). That’s good news for civil libertarians. Less so for national security buffs who want to milk suspects for actionable intelligence. Effective interrogation, after all, takes time—e.g., to check the suspect’s story and confront him with inaccuracies, to build rapport, etc.

In short, it’s hard to identify much that’s new in this memorandum. At most, it may increase the frequency with which FBI agents take advantage of the public safety exception. But my guess is that agents are already well schooled in Quarles. The real damage was done by the Court decades ago—the recent memo is just a refresher.

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