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Terror, Miranda and the Court


Our national debate now features the clash between two urgent forces.  One is the need to obtain timely intelligence to prevent mass murder at the hands of terrorists.  Three times in President Obama's brief tenure, there have been terrorist strikes on American soil: the Hassan massacre at Ft. Hood, the Christmas Day airline bomber in Detroit, and the Times Square bomber.  In the first of these, 13 people met their fate.  In the latter two, we got lucky.  But luck is no substitute for a national security policy.  And luck doesn't hold forever.

The second force, which we created, is the force of legal precedent that essentially invites captured killers and would-be killers  --  terrorists and others  --  to clam up.  This is the 1966 Miranda decision.  Miranda requires the police to tell suspects in custody that they have the right to remain silent and to the services of an attorney during questioning.  This is a virtual invitation to stonewall.  Every now and again, the suspect will decide to talk anyway.  But banking on that serendipity is foolhardy.  If the authorities violate Miranda, the suspect's statement is automatically suppressed, even if voluntarily given, seriously complicating the chances of obtaining a deserved conviction.

In recent days, the Attorney General has pointed out that there is an "emergency exception" to the Miranda rule, one that allows the police to question a suspect when public safety is in immediate danger.   Apparently, the roughly three hour-long unMirandized questioning of the Times Square bomber was undertaken in the hope that the courts will see fit to apply this exception.  Maybe they will, but it's hardly a sure thing.  In the case in which the exception was created, New York v. Quarles, 467 U.S. 649 (1984),  the unMirandized questioning lasted less than a minute.  Again, the Administration appears to be banking on a combination of (1) hope and (2) the good sense of people more serious than it is.

That is irresponsible as a matter of security policy and mistaken as a matter of Constitutional law.  Following the break, I describe what needs to be done. 

The only sensible option is to overhaul Miranda.  A more sober Congress than the one we have now attempted to do so in 1968, when it adopted a statute, 18 USC 3501, that would have restored the voluntariness inquiry as the touchstone of admissibility, although with added protections for the defendant.

Section 3501, however, never got off the ground, and was effectively nullified by the Supreme Court's decision in Dickerson v. United States, 530 U.S. 428 (2000).  Dickerson held that Miranda was "rooted" in the Constitution and therefore could not be overturned merely by an Act of Congress. 

Dickerson's holding was wrong.  It is of no moment that Miranda is "rooted" in the Constitution.  One would, after all, hope that Supreme Court rulings are, at the minimum, so rooted.  The only relevant question is whether Miranda warnings are required by the Constitution, and of course they are not.  What the Fifth Amendment requires is that the police refrain from taking a statement that is compelled, not one that is merely unwarned.  The assumption that an unwarned statement is ipso facto compelled is simply false, and of course is nowhere to be found in the Constitution or the history of its drafting.  Sometimes an unwarned statement will turn out to be compelled, to be sure, and the rendition of warnings makes compulsion less likely to be the cause of the suspect's decision to speak.  But the assumption that an unwarned statement is necessarily a compelled one is preposterous.

The Miranda Court made that assumption because of its deep distrust of the police and police  interrogation tactics; one cannot read the decision and come to any other conclusion.  But Miranda is 44 years old.  No serious person can fail to appreciate the significant enhancement in police professionalism over these last two generations.  Of course there are still occasional abuses  --  many of them given extensive coverage.  But standard operating procedure for police questioning is vastly more civilized and rule-bound than it was two generations ago.  Miranda may have been well-adapted to its time (although the four dissenters thought otherwise).  But times have changed.

In a way, Miranda is the victim of its own successes, and it is nonsensical to make the public, in the age of Times Square terror, the continuing victim of its shortcomings.  It was designed to modify police behavior and it worked.  Miranda had costs  --  as the suppression of probative evidence always has costs, to the truth and to public safety.  It once might have been plausible to think that it was worth the costs, steep though they often were.  But it has become an anachronism  --  an artifact of the sixties that, like lava lamps and love beads, seemed an apt fit for its time.  But it is not an apt fit for ours.  It's too rigid.  Its intent remains worthy, but its one-size-fits-all, automatic exclusionary rule exacts too high a price. 

We see now more clearly than 40 or 50 years ago the need for greater flexibility in police interrogations.  The war on terror is a war for intelligence; indeed, our failure to have advance warning of the attacks in Ft. Hood, Detroit and Manhattan was an intelligence failure.  The day is coming when the confines of Miranda, the slender and untested Quarles exception notwithstanding, will truncate what we can ask and what we can expect for answers.  The answers we don't get are going to cost lives, hundreds of them or maybe thousands.

This is not the world of 1966.  It's the next millenium, and nine years after we got a ghastly preview of what not knowing costs.  Not knowing is something we can no longer afford, and not knowing because of invited stonewalling, via a nostalgic but no longer sensible application of Miranda, is a scandal. 

We need something more than the fragile reed of Quarles's lone "emergency exception" to bail us out.  We have been through three terror attacks in this country in the last seven months.  It is not a single emergency, here today and gone tomorrow.  It's the mother of all emergencies, and it's going to be with us for a while.  It's not what we wanted or sought.  But it's what we have.

It is time for a more nuanced Supreme Court to revisit Miranda, and past time for the Justice Department to demand that it do so.  If the Administration or the Court will not act, Congress will have to.  But that is for a future post.


Given Dickerson, what can Congress do?


Good question. I'm planning a post on it. The short answer is that, since Dickerson did not claim that Miranda warnings are REQUIRED by the Constitution, there is a crack in the door for Congress to still have a modest role. Dickerson viewed Section 3501 as a de facto abolition of the Miranda decision, something the Court had never said or hinted that it would approve. The new statute would claim, in its legislative history, to be no more than a codification and clarification of Quarles, to be applied in a very limited set of cases and where the need is manifest.

The argument is somewhat hinckey, but I predict it will sell in the current environment. As ever, Kennedy will tell the tale. I have problems with Kennedy, and particularly with his inclinations toward judicial supremacy, but he is sensible enough to understand that the statute is needed in this day and time, and would not take much of a chunk out of Miranda.

We really do face a different world from what it was in the sixties. Indeed it's a different world from what it was ten years ago when Dickerson was decided. When you have car bombs an inch from going off in Times Square, the need to ask quick and unhindered questions will be sufficiently clear to get the statute over the hurdle.

This is not necessarily the way I would do adjudication, but it's how it gets done.

You'd know better than I, but there are issues with this approach:

(1) Quarles doesn't contemplate station house interrogations at all. In fact, it pointed out that the questioning it sanctioned was NOT conducted in the inherently coercive environment of the stationhouse. Thus the statute you propose is decidedly not a "codification" or "clarification"--it's an expansion.

(2) There's no logical stopping point--if Congress can make exceptions to Miranda, where are the standards to say when they're ok and when they're not.

(3) Your post asks for naked results-oriented decisionmaking when it says that Kennedy is "sensible enough". You cannot keep Miranda and Congressional exceptions. Logically, it's all or nothing, and I, for one, don't particularly care for SCOTUS engaging in too cute by half measures to arrive at a preferred result.

(4) Finally, a central tenet of Miranda is that stationhouse interrogations are inherently coercive---is that rationale simply going to be chucked in the terrorism context? Well, if you do that, then any legitimacy Miranda has is simply gone. Is Kennedy going to simply write the solitary opinion in a 4-1-4 SCOTUS split, and an opinion that, of necessity is going to be that results-oriented? That seems a tall order.

There are four ways to handle interrogations.

The first would treat the suspect as an illegal enemy combatant, which is what they are. Then the rules are different. But that isn't going to happen for at least two and a-half years. We need to straighten this out before then. The danger is imminent.

The next is to hope you get covered by the Quarles exception as it stands now. But that is very dicey. Some of these interrogations are going to have to last days or weeks. Stretching Quarles to that extent is a bridge too far.

The last two are to get the Court to re-visit Miranda with a Quarles-type gloss, or to have Congress do it for them. My post here is devoted to explaining why the Court should re-visit, what arguments could be made, and why I think they could work.

Miranda itself was jury-rigged, and so was Dickerson. And they were decided in an era when the public either favored or at least did not hotly oppose the restrictions they imposed on police questioning. But we are in a different time now, and the composition of the Court is different. More than you would think, supposedly Constitutional adjudication is arbitrary and result-driven, see, e.g. the new "fourteen day clause" from Shatzer.

Getting a partial re-working of Miranda by the Court is a big project. But it's needed and justified, so I see my role as figuring out, at least by thinking out loud, which is largely what I'm doing here, how to get it done.

The fourth option is a statute. You correctly identify some of the problems that, in principle, it would have. It is true that, LOGICALLY, Congress is either in or out. But "logically" don't call the shots. Logically, Miranda never gets decided to begin with, because it is simply not the case that every unwarned, station house statement is ipso facto compelled. The Framers knew all about the inherent pressures of custodial interrogation, but a warning requirement appears nowhere in the Fifth Amendment.

The Court made it up. The Court 34 years late likewise made up a holding invalidating an Act of Congress, conspicuously without saying the one thing they had to say, namely, that Miranda warnings are REQUIRED BY, and not merely "rooted in," the Constitution.

Rooted, schmooted. If you carefully read Dickerson, you'll see that where they're really coming from is something like this: "Miranda has been around for a long time, it's kinda Constitutional (though not really, really), people accept it, it even gets on TV a lot, and there's just no pressing reason to tank it at this point. So no dice."

The statute I would propose is less ambitious than was 3501, is limited in the kinds of cases it would reach, and would give a broadly supported solution to an urgent problem. That is the kind of statute the present Court would, in my opinion, find a way to approve.

I get how flimsy Dickerson is, how Miranda is (once you cut through all the extraneous blather) based on a flawed premise and that even Scalia will sometimes vote for an arbitrary rule. The problem is, of course, one of degree. Dickerson was too clever by a half, but "constitutionally rooted" is enough of a fig leaf to get it done from the standpoint of optics. Your proposal (i.e., statute plus Court acquiescence) would (a) completely undermine the rationale of Miranda in a patently obvious manner and (b) make the remaining five in Dickerson look like finger in the wind fools. And I just don't see that happening. Perhaps there's some benefit in putting SCOTUS on the spot, but I see this as a non-starter in terms of getting something actually accomplished.

I think the best solution given the constraints of the possible is to interrogate with the idea of getting as much information as possible, mitigate Miranda risk (with clean team interrogation) and letting the Miranda chips fall where they fall. Courts will ultimately figure out a way to accommodate public pressure and chip away at Miranda's strictures. Maybe a "trained terrorist" exception, i.e., that a trained terrorist can be presumed to have more powers of resistance than your average criminal.

Bill, I will, of course, give you the last word.

As many a federal appellate judge learned, I talk so much it's hard NOT to give me the last word.

so, bill, are you saying uncle? lol

Naw, it's just that I saw and responded to your one-liner giving me the last word before I saw your immediately preceding message.

My sense of things is that I would lose a case asking the Court to overhaul Miranda, but I would win one supporting a Quarles-in-the-terrorism-context statute -- Dickerson notwithstanding.

Of course it makes a difference how the statute is drafted. I expect DOJ to come up with one, although, oddly, Eric hasn't called here seeking advice on what it should say.

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