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Mirandizing Terror Suspects

There are further developments on the much-confused issue of when detained terror suspects have to be "Mirandized."  Evan Perez reports in the WSJ:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court's 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to "exceptional cases" where investigators "conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat." Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

There is a lot of confusion about Miranda warnings, much of it stemming from a failure to distinguish between constitutional rights during interrogation and those at trial.  The Supreme Court's splintering in Chavez v. Martinez, 538 U.S. 760 (2003) missed an opportunity to clear a lot of this up.

Beating a confession out of a suspect is a violation of his right to due process of law regardless of whether that confession is ever used in court, and indeed whether there is ever a criminal case at all.  However, the right not to "be compelled in any criminal case to be a witness against himself" is a trial right that can only be violated if there is a trial.  When the prosecution seeks to introduce the defendant's in-custody statement, a failure to follow the Miranda requirements raises a conclusive presumption that the statement is compelled and hence inadmissible.  However, "failure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues....  A constitutional right is traduced the moment torture or its close equivalents are brought to bear."  Chavez, 538 U.S., at 789 (Kennedy, J., concurring in the judgment in part).*

The "public safety exception," New York v. Quarles, 467 U.S. 649 (1984), is an exception to the "prophylactic" rule of evidence of Miranda, i.e., the conclusive presumption that an unwarned statement is compelled for the purpose of introducing it as evidence in a criminal trial.  It is not an exception to the prohibition of using actually compelled statements as evidence at trial.  It is not an exception to a substantive rule requiring all arrestees to be warned before questioning, because there is no such rule in need of an exception.  If the FBI wants to question an arrestee not for the purpose of gathering evidence but for the purpose of foiling a terrorist plot, nothing in the Miranda rule stops them from doing so or requires them to give warnings.  The Quarles issue only arises if and when the prosecution wants to introduce the unwarned statement in the criminal prosecution of the arrestee.

* Part II A of the plurality opinion by Justice Thomas sets forth the theory of the Self-Incrimination Clause as a purely trial right along the lines I have stated.  I quote Justice Kennedy's concurring opinion above on the "narrower grounds" rationale of Marks v. United States, 430 U.S. 188, 193 (1977).

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