This last week I was invited to participate in a debate hosted by the University of Hawaii Law School chapter of the Federalist Society. The topic was whether terror suspects should be given Miranda warnings. I had the privilege of squaring off with an exceptional opponent, Lt. Colonel Dan Mori, a JAG Corps attorney who has seen service in both Iraq and Afghanistan, and who has represented a Gitmo detainee.
Unlike my drug legalization debate with Professor Doug Berman at Ohio State, the Hawaii event was not videotaped. For those who might be interested, I set forth below my opening statement, explaining why Miranda is a regimen for a different, less deadly age.
There are two ways to approach the question whether we should give Miranda warnings to terror suspects, and both start with examining the relationship between Miranda and the Fifth Amendment, under whose authority it was purportedly decided.
First, there's the old fashioned way, the one the Miranda Court cast aside, which is to read the Fifth Amendment and follow its text.
Although one train of thought views Miranda's "forward-looking," improvised approach as the better sort of Constitutional interpretation, a competing school, more popular in recent years especially among groups like the Federalist Society, is to take the Founder's directions as they wrote them, rather than as the more creative thinkers of the Warren Court re-wrote them.
Under this text-oriented view of the Constitution, we needn't give Miranda warnings to terror suspects or anyone else, because Miranda was incorrectly decided, as its four dissenters understood. The Fifth Amendment does not forbid unwarned statements; it forbids compelled ones. No one could seriously argue that the Framers did not understand the difference, since they had experience both with warnings and with compulsion -- the latter, exercised by the Crown, being principally the thing against which they fought the Revolution. Nor could anyone argue that an unwarned statement is necessarily a compelled one. Sometimes it will be, but other times it won't, and in any event the requirement of non-compulsion is very much alive and kicking, meaning, among other things, that Miranda is not merely wrong but inefficient. In today's courtrooms, the part of the suppression motion immediately following the Miranda argument is the one making the old-fashioned voluntariness argument, warnings or not.
I will not tarry with the textualist theory, however, because despite the fact that the Court gives occasional lip service to it, it doesn't actually believe it or take it seriously, as its decision in the Dickerson case -- reaffriming Miranda -- proved.
So I'll move on to the actual theory under which the Court operates, that being that judges get to make it up as they go along.
This sometimes goes under the name of the "living Constitution." It allows us, we are told, to adapt the Framers' Neanderthal thinking to the more complex exigencies of the modern age.
The odd thing about this theory is that, unlike what liberals suppose, it provides even less support for Mirandizing terror suspects than the textualist theory. This is because the exigencies of the modern age -- the age of jet airplanes, anthrax supplies, cell phone-detonated IED's, Facebook codewords and generally life after 9-11 -- is mind-bendingly different from Miranda's world of two generations ago -- the world of hula hoops, love beads and Elvis, where the most catastophic sort of crime was merely your garden variety serial killer. The ghastly landscape of Manhattan literally as Ground Zero was unimagined by the Justices who wrote Miranda -- thinking, as they did, mostly just of the fellow who knocked over the gas station.
This is easy to see in a context liberals are quite vocal about today, that being the putative Constitutional right to gay marriage. In Miranda's time, there was no talk of gay marriage, and little, for that matter, of gays. Homosexual conduct was considered an impolite topic for discussion, and homosexuality itself was considered not a sacrament but a felony.
Today, liberals are jumping up and down for the Court to recognize, as a matter of Constitutional law, the difference in the country's attitude toward gays that has occurred in the last five decades. At the same time, they defend Miranda's aging and creaky rules while maintaining a dogged obliviousness to the change in the security landscape over that time at least as breathtaking as the change in social attitudes. I am thus cast in the ironic role of trying to introduce my liberal friends to the utterly changed contours of the modern world -- a changed world that, in other contexts more congenial to conventional progressive thinking, they have no trouble recognizing and, indeed, insisting upon.
As it happens, the doctrinal groundwork for adapting Miranda to the new Age of Terror is to be found in Dickerson itself, and even more so in the Court's opinion in New York v. Quarles. In Dickerson, the Court had to explain why, if Miranda was a creature of the Fifth Amendment, the Court had been able to poke big holes in it in Quarles, which recognized a previously unknown public safety exception, and two other cases.
As befits a "living Constitution" kind of court, the majority said: "Those decisions illustrate the principle, not that Miranda is not a constitutional rule, but that no constitutional rule is immutable. No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision."
It is difficult to imagine language better suited to adjusting Miranda to the world of quick, sequential terrorist attacks that are the new reality. What we need to know -- right now -- from the next Zacarias Moussaoui, or underpants bomber, or the next fellow targeting Times Square is not, in the first instance, the information that will help convict him. What we need to know is where and when the next attack is coming (e.g., in half an hour, this afternoon or next week), who will be carrying it out and with what weapon, who is directing the enterprise, and who is supplying the training and money. The notion that, rather than demanding answers to these life-saving questions, we should instead invite the suspect to clam up and assist him in doing so by providing a lawyer, goes beyond being merely perverse.
Much of what the pro-Miranda side misses is that the primary purpose of questioning in the terror context is very different from the primary purpose of standard police interrogation. The importance of the difference in purpose was set out in bold relief just yesterday in Justice Sotomayor's opinion for the Court in Michigan v. Bryant. Although that was a confrontation case, not an interrogation matter per se, it makes the point that the Constitution's allowance of police questioning, and the decision whether to permit the answers to be admitted in court -- even if, in most circumstances, their admission would violate the defendant's constitutional rights -- depends heavily on the primary purpose for which the questioning was undertaken. If it is to deal with an "on-going emergency," as the Bryant Court put it, more leeway will be allowed. And it's difficult to envision an on-going emergency more urgent than finding out when and where the next plane will hit, the next subway station will be bombed, or the next batch of hostages will be taken.
Liberals often tell us that we should look to other countries in deciding questions of American law. Some of us have our doubts about this, preferring to look to such quaint measures as American statutes and the understanding of them by their drafters in Des Moines or even Washington, rather than Brussels. But if we are to look to Europe for guidance, we'll find that, for example, France and England allow more leeway in questioning terror suspects than would be permitted if we insisted upon a faithful adherence to Miranda. Indeed, both Miranda's substantive requirements, and its automatic exclusionary rule, are more rigid than anything practiced in Europe.
Finally, I believe that if we step back, we'll see that the whole debate about Miranda, as it has been conducted up to now, has an unreal if not other-worldly quality to it. We are not talking about questioning the next fellow on the police blotter. We're talking about questioning a captured enemy combatant on the battlefield he has chosen. It was not the American public who decided to wage a war of terror. It has been thrust upon us by a body of decidedly illiberal people inebriated with beliefs taking root in the Seventh Century. The battlefield our enemies have selected is not the traditional one. As the world learned in Israel, Afghanistan, London, Madrid, Africa and many other places, the battlefield is our airplanes, subways, schools, market places and skyscrapers.
In World War II, when we captured enemy combatants and demanded of them information about where the next attack was planned and how they brought off the last one -- then, whether or not they could later be criminally prosecuted, as some were -- it would have been considered preposterous to require that they be advised of a right to remain silent, and of course no such advice was given. We would do well to remember this when we are asked to deploy rules of domestic criminal procedure created nearly half a century ago to a world their creators could not have imagined.