A Tribute to Reason?
The grounds crew wheels a huge, star-shaped stage into the center of MetLife Stadium for the halftime show of Super Bowl XLVIII. Just as the music begins, a huge cloud of smoke rises out of the middle of the crowd. At first it seems as if the smoke is part of the performance, but as swaths of fans sprint from the field, it becomes apparent to the millions watching on TV that something is amiss. Stadium security surrounds the source of the smoke, a lone man, and apprehends him as he tries to flee. A few minutes later, Troy Aikman announces from the booth that the suspect has been brought into custody after his vest, packed with TATP and nails, failed to detonate. Although that the area is being secured so that the game can continue, police have yet to determine whether the suspect acted alone or whether other targets exist. Fox’s legal analyst at the game insists that the subject will likely be subject to immediate interrogation. Joe Buck is in favor of it – after all, this man is a terrorist.
In 1966 with Miranda v. Arizona, the Supreme Court established a system of warnings that guaranteed every suspect, even those society finds most deplorable, would at least have knowledge of the protections afforded by the Constitution before any custodial questioning began. Later, in New
York v. Quarles, the Court established an exception
to its formerly universal rule – law enforcement officers need not administer Miranda warnings if their questioning related to “public safety.” The so called “public safety exception” (PSE) has become particularly controversial in its application to terrorism cases, in which what constitutes an
By Joe Bianco
Williams College
immediate threat to public safety is often indefinite and arbitrary. The question remains whether the
Quarles exception, as applied in terrorism cases,
undermines the purpose and intent of Miranda as a prophylactic rule against unjust government interrogation.
Before Miranda, courts had excluded non-voluntary confessions on a case-by-case basis, often evaluating many factors in their determination of whether a confession was coerced. In Bram v. U.S., Justice White articulates this pre-Miranda standard well, saying that “in order to be admissible, [a confession] must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the extension of any improper influence.”1 This method worked
fine at the Supreme Court level, but throughout the 1930s and 40s, blacks in the Deep South faced extreme brutality at the hands of police officers and received no relief from the judicial system.2 The
state courts upheld convictions based on confessions given after suspects were whipped, beaten, burned, and threatened with mob violence.3 Between 1957
and 1963, the Warren Court overturned eight of ten cases it heard involving “voluntary” confessions – a clear demonstration of its dissatisfaction with the application of the voluntariness standards.4 By the
1 Bram v. United States, 168 U.S. 532 , Case No. 340, U.S. Supreme Court, 1897.
2 Amos Guiora, “Relearning Lessons of History: Miranda and Counterterrorism.” Louisiana Law Review, (2011), 1155. 3 See Brown v. Mississippi and Ward v. Texas.
4 Guiora, 1155.
Terrorism, Miranda, and the Public Safety Exception
“The so called ‘public safety
exception’ has become particularly
controversial in its application
to terrorism cases...”
1960s, the Court had also become increasingly skeptical of the lower courts’ ability to protect suspects against new methods of psychological coercion. Chief Justice Warren’s observation “that blood of the accused is not the only hallmark of an unconstitutional inquisition” highlights this growing concern that “sophisticated methods of ‘persuasion’” could easily match “the efficacy of the rack and the thumbscrew” in extracting confessions.5
In response to what it perceived to be an endemic deprivation of Fifth and Sixth Amendment rights, the Supreme Court implemented the now-famous
Miranda warnings. Chief Justice Warren, writing
for a 5-4 majority, insisted that every suspect “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to presence of an attorney, either retained or appointed.”6 Though
critics often point to this specific enumeration as an example of the judiciary overstepping its bounds, the Court sought to establish a prophylactic rule precisely because the states were ineffective in upholding these rights on their own.
The now-controversial PSE exception, on the other hand, originated in a fairly mundane case. Upon arresting Benjamin Quarles in a convenience store, Officer Frank Kraft noticed Quarles’s empty shoulder holster. Logically, Kraft asked him where the gun was, to which Quarles responded, “the gun is over there.”7 Quarles moved to suppress that
statement in court because he had not first been read his Miranda rights, and both the trial judge and New
5 Blackburn v. Alabama, 361 U.S. 199, Case No. 50, U.S. Supreme Court, 1960. 6 Miranda v. Arizona, 384 U.S. 436, Case No. 759, U.S. Supreme Court, 1966.. 7 New York v. Quarles, 467 U.S. 649, Case No. 82-1213, U.S. Supreme Court, 1984. 8 New York v. Quarles.
9 New York v. Quarles.
10 Orozco v. Texas, 394 U.S. 324, Case No. 641 (1969). 11 New York v. Quarles.
12 Joanna Wright, “Mirandizing Terrorists? An Empirical Analysis of the Public Safety Exception,” Colombia Law Review, (2012), 1316.
York Court of Appeals sided with him, preventing the testimony, and the gun found as a result, from being admitted into evidence. The Supreme Court, however, reversed the holding, finding that in cases like this one, the “need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”8 Justice Rehnquist characterized
this exception as a necessary concession to the difficult situations that police officers may find themselves in. The majority refused to place police officers “in the untenable position of having to consider, often in the matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings” and possibly endanger the public.9 An important distinction is made in
Quarles to differentiate it from an earlier case, in
which four officers, several hours after a homicide was committed, stormed into the suspect’s house, woke him, and interrogated him, asking whether he had been at the scene of the crime and where the gun was.10 In that case, the Court found that
the questions were “clearly investigatory,” whereas in Quarles the questions related “to an objectively reasonable need to protect the police or the public from any immediate danger.”11
The typical PSE case resembles Quarles itself. An empirical study of both state and federal cases found that over 83% of cases in which prosecutors invoke the PSE concern missing firearms and over 97% concern missing weapons or a suspected accomplice.12 When loaded weapons or criminal
accomplices cannot be located, the “immediate danger” to the public is obvious, and law enforcement has not only an interest in, but moreover a duty to, protect the public, even if that means infringing
“...over 83% of cases in which
prosecutors invoke the PSE
concern missing firearms...”
on the Constitutional protection against self-incrimination. In cases of terrorism, however, what legally constitutes an “immediate danger” is far less clear. When individual criminals like Quarles are arrested, law enforcement has already addressed the most pressing public danger, and must deal with residual threats like guns or other weapons. The arrest of an individual terrorist, however, does nothing to deter other terrorists, nor does it ensure that other, simultaneous attacks can be prevented.
The “simplest” case of domestic terrorism and the PSE demonstrates a close adherence to the original decision in Quarles. In the attempted Brooklyn Bombing of 1997, police officers received a tip regarding several pipe bombs and two suspects in a Brooklyn apartment. After the men were treated for the gunshot wounds they received while resisting arrest, officers asked questions “as to how many bombs there were...which wire should be cut to disarm the bombs and whether there were any timers.”13 One of the suspects, Abu Mezer, answered
all these questions. Even in this case, with an apparent ticking time bomb, there was a wrinkle. An agent asked whether or not Mezer intended to kill himself with the bombs, to which he replied, “Poof.”14 He
disputed the admission of this into evidence at trial, because it created a negative impression of him to the jury and had little to do with public safety. The trial judge, however, agreed with the government that the answer to the question gave some hint as to the power and stability of the bomb. The appellate court affirmed this decision, saying that the admission was at worst a harmless error.
Although there were concerns about possible synchronous attacks, the broad scope of the interrogation in the case of Umar Farouk Abdulmutallab illustrates how malleable the public safety exception can be. Abdulmutallab was arrested in Detroit after an explosive device in his underwear malfunctioned. Following treatment of his burns, FBI special agents questioned Abdulmutallab
about the attempted attack. Because the “agents feared that there would be additional, imminent aircraft attacks in the United States and elsewhere in the world,” they declined to read Abdulmutallab his Miranda warnings before questioning him.15
Because his bomb had already failed, none of the questions the agents could ask would satisfy the PSE in the traditional sense. Adherence to that precedent in the most literal sense, however, would be absurd, and the courts rightfully allow questioning regarding simultaneous or impending attacks. The agents asked questions, however, not only about “his intention in attacking Flight 253, and who else might be planning an attack,” but also about others that he “lived with, or attended the same mosque with…who had a similar mindset… about jihad, martyrdom, support for al-Qaeda, and a desire to attack the United States by using a similar explosive device on a plane.”16 While the
questions determining likelihood of any other immediate attacks clearly warrants protection of the PSE, perhaps the other questions should as well. After all, any question that gathers information about possible attacks or generally dangerous individuals also serves the “public interest” in a broader sense. Miranda warnings exist, however, to protect defendants like Abdulmutallab from having answers given during an unfair interrogation used against them in a court of law. If the warnings are only given after the FBI has questioned the suspect extensively and learned everything, they do little to guard against self-incrimination. Unfortunately, in cases where the defendants are alleged terrorists rather than ordinary criminals, the public has shown little interest in the protection of their rights.
The case of Dzhokhar Tsarnaev, the suspect accused with planning the bombing of the Boston Marathon that wounded over 260 people, bears striking resemblance to that of Abdulmutallab. Though the FBI had no evidence Tsarnaev acted in coordination with any organized terrorist group,17
13 United States v. Lafi Khalil, Gazi Ibrahim Abu Mezer, Case No. 214 F.3d 111, United States Court of Appeals for the Second
Circuit, 2000.
14 U.S. v. Mezer.
15 United States v. Umar Farouk Abdulmutallab, Case No. 10-20005, 2011. 16 U.S. v. Abdulmutallab.
“no system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise [his Constitutional] rights.”21
In theory, the judicial branch exists to protect these Constitutional rights, especially when they are unpopular with the public at large. Nonetheless, the only time any court has rejected a an explosive-device-related PSE claim was when an officer asked a defendant questions even though he had already identified the explosive device in the suspect’s car. However, even Hawaii v. Kane can be considered an outlier, as the suspect was not a terrorist, but simply had a makeshift bomb he claimed he needed for self-defense.22 Excluding Kane then, in all nine
cases involving an explosive device, a terrorist, and the PSE, the courts have permitted inclusion of all unwarned testimony. The courts have not only failed to reject extraneous testimony, but by their acquiescence they have perpetuated the unfair practices of the FBI.
The FBI was not always so quick to dismiss defendant’s constitutional rights. Ironically, before
Miranda, they had already started giving codified
warnings similar to those stipulated by Chief Justice Warren.23 This commitment to civil liberties
remains their public position, though practices behind closed doors have changed. In response to an initiative by Senator Mitch McConnell which and was instead “radicalized through jihadist
materials on the Internet,”18 they insisted that he
still presented a threat which warranted a sixteen-hour interrogation without Miranda rights.19 In
sixteen hours of unwarned interrogation, however, it seems the FBI must have questioned Tsarnaev more for intelligence purposes than for fear of immediate danger to public safety, especially since several days had passed since the actual attack. As of writing, the questions FBI agents posed to Tsarnaev are unavailable. Nonetheless, because he stopped cooperating after being read his rights by a federal judge, any information the FBI has released that comes from Tsarnaev himself offer a clue as to what types of questions were posed to him. The New York Times reported that Tsarnaev and his brother planned the attack for the Fourth of July, a response that seems unrelated to any pressing manners of public safety since the attack had already happened.20 The FBI also discovered
that the sermons of Anwar al-Aulaqi played a role in his radicalization, but that the two had never actually communicated. Because al-Aulaqi was killed in a 2011 drone strike, and the FBI certainly had knowledge that his sermons remained available on the Internet, it seems reasonable to speculate that this question, also lacked a substantial relationship to any immediate public danger.
As previously mentioned, Tsarnaev, a naturalized citizen, immediately stopped cooperating after the FBI read him his rights. This speaks to the consequences, for better or for worse, that alerting a suspect of his rights may have. On the one hand, obtaining valuable information from seemingly uncooperative suspects seems advantageous. If any of the intelligence extracted from Abdulmutallab or Tsarnaev saves even a single citizen’s life, then the benefit to the public outweighs their right against self-incrimination. On the other hand, as Justice Goldberg pointed out over fifty years ago,
17 Gregory Smith, “Should Boston bombing suspect get a Miranda warning? Debate follows Friday capture,” CNN.com, April 20, 2013. 18 Associated Press, “Boston Marathon bombing suspect Dzhokhar Tsarnaev silent after read Miranda rights,” CBS.com, April 25, 2013. 19 See note 18 above.
20 Eric Schmitt et. al., “Boston Plotters Said to Initially Target July 4 for Attack,” New York Times, May 2, 2013. 21 Escobedo v. Illinois, 378 U.S. 478, Case No. 615, U.S. Supreme Court, 1964
22 State of Hawaii v. Dayton Kane, No. 96-2258, Court of the State of Hawaii, 1998. 22 Miranda v. Arizona.
“Tsarnaev, a naturalized citizen,
immediately stopped cooperating
after the FBI read him his rights.
This speaks to the consequences...
that alerting a suspect of his
regulated treatment of detainees at Guantanamo, Attorney General Holder points to the Domestic Investigations and Operations Guide, which advises agents to give Miranda rights before questioning as evidence of the executive branch’s dedication to proper treatment.24 Similarly, the Legal Handbook
for Special Agents states, “whether an accused or suspect will cooperate is left entirely to the individual.”25 Even in that same manual, however,
the FBI reminds its agents that “certain questions such as standard booking questions and public safety questions, do not amount to interrogation for purposes of Miranda.”26 The legal handbook
explains the safety exception by giving the example of arresting a suspect for an “armed offense” and making an “inquiry to determine the location of the weapon.”27 Terrorism is not mentioned because
far from the “kaleidoscopic” world of the agent in the field, where timely decisions can alleviate imminent threats to the public, in terrorism cases the FBI can consider how exactly it wishes to go about interrogating suspects, and to what extent it can stretch or ignore the PSE.
Of more pressing concern than its manual, however, is a 2010 memo that specifically addresses custodial interrogation of terrorist suspects. In it, the FBI suggests that “any and all questions that
are reasonably prompted by an immediate concern for the public” are permitted.28 Because the courts
have ruled consistently in their favor, the language around the PSE has broadened, but the idea, especially of immediacy, here remains consistent with the PSE’s original purpose. The FBI also reminds agents that cases of operational terrorists “may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.”29
This quote further illustrates the FBI’s awareness of judicial leniency. The last option the FBI gives its agents is to forego Miranda warnings altogether and “continue unwarned interrogation” if “necessary to collect valuable and timely intelligence not related to any immediate threat.”30 By encouraging
its agents to sometimes go beyond public safety questions, it seems the FBI places its personnel in the untenable situation the Court in Quarles specifically sought to resolve. This may be included simply because it could conceiveable happen and as the FBI recommends that agents consult with FBI-HQ and the DOJ before pursing this path seems, suggests that there are few scenarios that would place agents themselves in this difficult position.31
Furthermore, citing several cases, the FBI memo reminds agents that the Fifth Amendment rights are only violated “if and when the government introduces an unwarned statement in a criminal proceeding against the defendant.”32 This seems
a reasonable compromise. The FBI can collect valuable, yet incriminating information completely unrelated to the present crime as long as they do not use it at trial. Unfortunately, history has shown the willingness of the FBI to use all statements given before Miranda at trial, and the willingness of the courts to admit it all under a broadened PSE.
24 Eric Holder, Letter to the Honorable Mitch McConnell, February 3, 2010. 25 Legal Handbook for Special Agents, Federal Bureau of Investigation, 2003. 26 See note above.
27 See note above.
28 F.B.I Memorandum, “Custodial Interrogation for Public Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside
the United States,” October 21, 2010.
29 See note 28 above. 30 See note 28 above. 31 See note 28 above. 32 See note 28 above.
“The FBI can collect valuable,
yet incriminating information
completely unrelated to the
present crime as long as they
Miranda warnings may not even deter suspects
from responding. Both anecdotally and empirically, the results are inconclusive. The testimony of four retired NYPD detectives seemed to indicate that the Miranda warnings, as applied, never made a difference in obtaining a confession or other information from suspects.33 Additionally, three
FBI agents, in a letter to President Obama, urged that current Miranda and PSE polices remain in place, because they found that in “decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with our ability to obtain useful information or make prosecutable cases.”34 The cases of Mezer,
Abdulmatuallab, and the suspect in the attempted Times Square Bombing, support this claim, as all the suspects cooperated with law enforcement even after being read their Miranda rights.35 Conversely,
Tsarnaev’s case points to the possible repercussions of Miranda warnings. A study by the National Center for Policy Analysis indicates a significant decrease in confessions (approximately 14%) across several cities following the original 1966 decision.36
FBI Uniform Crime Reports showed a national decline of almost 15% in clearance rates for violent crimes.37 This evidence only demonstrates that there
is a reduction in cooperation when suspects become generally aware of these rights for the first time, now more or less irrelevant, as both criminals and law enforcement have acclimated to the new standards. Because terrorists may be unfamiliar with American law (and perhaps law enforcement with them) they may resemble average criminals before 1966. No one seems to have asked any of these suspects if they were aware of their Miranda rights prior to arrest, but it seems reasonable to assume that they might not be familiar with the popular warnings. Tsarnaev’s actions, at least, indicate that it is possible for terrorist suspects to be unaware of their right to remain silent. If accurate, this observation can
support either position. It may highlight the need to read these suspects their Miranda rights because their lack of familiarity with the legal system and their rights makes them particularly vulnerable to unfair police practices. On the other hand, one could argue that precisely that lack of familiarity ought to be exploited by law enforcement, rather than remediated. Better to use that large hole to break down any barrier between the government and valuable intelligence than to patch it up and take the risk, an empirically significant risk, of never knowing what information could have been discovered.
In that latter scenario, however, we risk losing the ground that the Court gained for criminal defendants over half a century ago. Though law enforcement has taken enough leeway in interpreting or disregarding the PSE, the courts can be blamed for systematically enabling this approach. Eight cases have allowed for questions on topics from methamphetamine laboratories to an explosive device given to the suspects by the government (in a sting operation) to enter into evidence.38 The
information unrelated to immediate danger that the FBI obtains could still be used to protect the public or even prosecute other criminals. The Court allows, however, for the government to use this evidence in trial, thereby violating the defendant’s Fifth Amendment rights without real justification.
In his opening statement at the Nuremburg Trials, (future Justice) Robert Jackson declared that:
33 Tim Muldoon et. al., Lecture, Williams College, April 1, 2013.
34 Jim Clemente, Jack Cloonan, and Joe Navarro, Letter to President Barack Obama, May 13, 2010.
35 Elizabeth Nielsen, “The Quarles Public Safety Exception in Terrorism Cases. Reviewing the Marshall Dissent,” American University
Criminal Law Brief, (2012), 29.
36 Paul Cassell, “Handcuffing the Cops: Miranda’s Harmful Effects on Law Enforcement,” National Center for Policy Analysis (1998), 2. 37 Cassell, 10.
37 Wright, 1331.
“....Miranda rights never
interfered with [FBI agents’]
ability to obtain useful
information or make
The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.
It is easy to protect civil liberties in times of peace, but as Jackson suggests, a nation ought to be judged on how it judges in times of crisis. While the argument can be made that the intelligence gathered in unwarned interrogations outweighs the harms to constitutional liberties, especially those of terrorists, the extent to which the PSE has been expanded seems to have eroded the usefulness of the
Miranda warnings altogether. Because information
unrelated to immediate public safety risks is repeatedly admitted to courts, the FBI offends Fifth Amendment rights when a viable middle ground exists. After Osama bin Laden was killed in May 2011, President Obama said that our nation “will be relentless in defense of our citizens and our friends and allies” and that “we will be true to the values that make us who we are.” These two goals need not be at odds. As President Obama suggested, they can go hand in hand. If domestic terrorists continue to be denied their rights and the PSE continues to be expanded, however, the two objectives will become increasingly dissociated. While the exception does not seem to have swallowed the rule yet, we, as a nation, must tread carefully in our treatment of those who have wronged us in the worst ways.
