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Miranda for Terror Suspects?

Kent and I have blogged a number of times about the Administration's missteps in dealing with captured terror suspects and, in particular, whether and at what point they should be advised of Miranda rights  --  advice that is likely to bring to a halt whatever cooperation they might have been giving.

The Administration seems to have gone through fits and starts on this question, seemingly never able to reconcile (1) its ill-advised determination to view terrorism as a matter for standard civilian trials and the accompanying rules of domestic criminal procedure, with (2) the unwelcome but central fact that terrorism is the front line in a war, and captives we take are less criminals violating our law than enemies aiming to replace it.

A week ago today, I had the privilege of talking through this question with a large and eclectic audience at a Federalist Society event at Columbia Law School in Manhattan.  The conversation was not recorded, by my opening remarks are set forth after the break.

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 walked past, which is to read the Fifth Amendment and follow it.
Although one train of thought views Miranda's "progressive," non-textual approach as the preferred method of Constitutional interpretation, a competing school, more popular in recent years, especially among groups like this, 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 because, under the Fifth Amendment, we needn't give them to anyone.   Miranda was incorrectly decided, as its four dissenters understood.  Nothing in the Constitution forbids the admission of unwarned statements; it forbids the admission of compelled ones.  No one could seriously argue that the Framers did not understand the difference.  Nor could anyone argue that an unwarned statement is necessarily compelled; sometimes it will be, other times it won't.  Moreover, with or without Miranda, the non-compulsion requirement is very much alive and kicking.  This means, 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 traditional voluntariness argument, even where all agree that the warnings were given in full measure.
I will not belabor you with the textualist theory, however, because despite the fact that the Court gives occasional lip service to it, it almost never actually believes it or takes it seriously, as its decision in the Dickerson case  --  reaffriming Miranda almost 14 years ago  --  proved.
So I'll move on to the actual theory under which the Court operates, that being that judges 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' troglodyte thinking to the exigencies of the modern age.
The conservative critique of this theory is old hat by now, so I won't rehash it before a group this sophisticated.  I'll be content instead to note the delicious irony that, contrary to what liberals assume, the living Constitution theory 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, exploding backpacks, cell phone-detonated bombs, and generally life after 9-11  --  are mind-bendingly removed from Miranda's world of two generations ago  --  the world of  love beads and Elvis, where the most chilling sort of crime was merely your garden variety serial killer.  The deadly landscape of Manhattan 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.
The ever-so-Sixties quality of Miranda is easy to see in a context liberals are vocal about today  --   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 eager for the Court explicitly to embrace, as an Equal Protection imperative, the enormous differences in attitude two generations of time, understanding and acceptance have brought about.   Simultaneously,  and seemingly unconscious of the irony,  they defend Miranda's anachronistic and doddering rules, seeming to have blanked on the change in the security landscape over that time  at least as breathtaking as the change in the social landscape.   I am thus cast in odd role of trying to introduce my liberal friends to the new 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 Age of Terror is peeking through in Dickerson.  The question there was whether Miranda's warnings are a constitutional requirement, or whether, instead, they are less than that, and thus can be changed by the political branches, as Congress did in 1968.

In that year, Congress passed, and President Johnson signed, a statute, 18 USC 3501, that significantly modified Miranda.   It made the giving of Miranda warnings an important factor for a district court to consider in determining whether the defendant's statement would be admitted, but it was no longer inevitably a necessary factor.  Instead, the statute effectively reinstated the Fifth Amendment's overall voluntariness standard, and set forth a multi-factor test the court was to use to decide whether that standard had been met.  The rendition of warnings would be an important, but no longer the controlling, question.

The parties who opposed allowing any modification of Miranda by the political branches argued that the warnings were a constitutional requirement, and thus that only the court, not the legislature, could change either them or the suppression remedy through which they are enforced. 

But there was a problem with this position.  The problem was that  for roughly the previous 25 years, since Michigan v. Tucker, the Court had referred to Miranda's regimen as a series of "recommended procedural safeguards" that are "not themselves rights protected by the Constitution" and are "not Constitutional in character."

The even bigger problem was a 1984  case, New York v. Quarles.   The Dickerson Court had to explain why, if warnings were in fact a requirement of the Fifth Amendment  --  effectively a stand-in for voluntariness itself  --  the Quarles Court had been able to make it all  go bye-bye,  recognizing an obviously needed, but previously undiscovered, "public safety exception."  The Quarles holding allowed, in what were plainly emergency circumstances, both the taking and the subsequent admission into evidence of an unwarned yet highly incriminating statement.

Confronted with Quarles and these various other embarrassments from Michigan v. Tucker on, the Dickerson majority didn't miss a beat.  As befits those who see a "living Constitution", the majority said that its numerous earlier discussions referencing Miranda's prophylactic nature:

"...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 it might be applied, and the sort of  modifications represented by these cases are as much a normal part of constitutional law as the original decision."

This was of course so much sleight-of-hand.  It was engineered to finesse the absurd result a straightforward application of Miranda in Quarles would have demanded.  Still, Dickerson's language has the virtues of its defects:  It's also wonderfully adaptable to finesse the even more absurd, and considerably more dangerous, result we would get now if, by insisting on warnings, we were effectively to invite terrorists not to give us the information that will one day, if it hasn't already, save hundreds or thousands of lives.   What we need to know  --  right now  --  from the next underpants bomber, or Times Square Jihadist, or Boston Marathon killer 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, who will be carrying it out and with what weapon, who is directing the enterprise, and from where.  To argue that,   instead of demanding answers to these urgent questions, we should invite the suspect to clam up and assist him in doing so by providing a lawyer, would be to lurch from the perverse to the unhinged.

Much of the confusion we have seen over the last few years stems from the Attorney General's ill-prepared approach to terrorist interrogation.  It began, for present purposes, when Mr. Holder was called before Congress to explain why, on Christmas Eve 2009,  the FBI gave the underpants bomber Miranda warnings after just 50 minutes of questioning.  Torn between robotic adherence to Miranda  --  a liberal icon for virtually all of Mr. Holder's adult life  --  and the need to avoid looking like he was actually too disconnected from reality to understand the need to extract  information about what could be an immediately impending attack, the Attorney General could not give a coherent answer.

It was clear that the issue demanded more thoughtful consideration, and that a more settled policy was needed.  In October 2010, one appeared in an FBI Memorandum.  This is the heart of it (footnotes omitted):

Agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.

After all applicable public safety questions have been exhausted, agents should advise the arrestee of his Miranda rights and seek a waiver of those rights before any further interrogation occurs, absent exceptional circumstances described below.

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.

This is a step forward, but there are two problems.  The first is substantive.  While the new policy purports to rest on Quarles (which it cites), it's much less than clear that Quarles will stretch as far as it's being pulled.  We need to go back to Quarles to see why.

In that case, a woman approached police, told them she had just been raped at gunpoint, and that the rapist had fled into a nearby supermarket.  One of the officers, pistol drawn, pursued the man into the back of the store.  He ordered him to stop and frisked him.  He found an empty holster, and asked the suspect where he had put the gun.   Quarles pointed to some empty boxes and said, "it's over there."  The officer found the gun where Quarles had pointed, and only then did he give Miranda warnings.  The New York courts suppressed the gun and Quarles's statement as having been taken in violation of Miranda.  On the basis of its newly-minted "public safety exception," however, the Supreme Court reversed.

Mr. Holder is generally correct in believing that Quarles lays the doctrinal groundwork for his terrorist interrogation policy, but doctrine isn't everything and facts still count.

Hence the first problem I mentioned.  In Quarles, the unwarned interrogation lasted a minute and a-half at most.  It's extremely unlikely that such brief questioning will suffice for the sort of interrogation we need to undertake with al Qaeda operatives  --  people who are less criminals than enemies.   This is certainly true regards the first part of the Attorney General's guidance  --  the part that authorizes unwarned questioning designed to uncover immediate threats.   It is incomparably more true as to the second part, which authorizes continued unwarned interrogation designed to gather terrorist intelligence "not related to any immediate threat"  --  language in Mr. Holder's policy that is at best difficult to reconcile with the Quarles exception upon which it claims to build.

The strain on Quarles is obvious in cases we've already seen.  The unwarned interrogation of the underpants bomber lasted 30 times longer than the questioning in Quarles.  The unwarned interrogation of the Boston Marathon bomber lasted 600 times longer.  The unwarned (to say the least) interrogation of the highest-value al Qaeda captive, Khalid Sheikh Mohammed, lasted for months.  It's possible the courts will stretch Quarles to that point, but an experienced litigator wouldn't bet the house on it.  Still  less would any CIA interrogator wondering whether the law will have his back (as opposed, for example, to investigating him for war crimes).

But the substantive stretch for Quarles is actually the lesser of the problems the Attorney General's interrogation policy creates.  The greater problem  --  at least in Constitutional terms as they are presented in the post-Dickerson world  --  is that the political branches cannot on their own create or expand exceptions to Miranda.  We know this not merely because the Dickerson Court told us, but because, in an earlier incarnation  --  as Deputy Attorney General  when Dickerson was briefed  --  Eric Holder did too.

The subtext of Mr. Holder's current policy seems to bet that Dickerson didn't really mean what it said, and that, not only can Miranda's warning requirement be modified by a branch other than the judiciary, it can be  massively transfigured  by  a single agency within the Executive Branch.  Indeed, the Department's stance arguably goes beyond merely modifying Miranda and/or expanding Quarles; it would, as some liberals have observed, seem to create a whole new category of "terrorist interrogation."

On the merits, that's an excellent idea, and the Supreme Court might indeed go for it.  In both last Term's voting rights decision (to the delight of conservatives) and the DOMA case (to the delight of liberals), the Court did seem to understand that we are no longer stuck in 1966.   It would very likely help the Court get to where we need to be if Mr. Holder understood, and were willing to help the Court understand, that, in answering a threat to the entire country's well-being, the shaping of interrogation policy is a job for all three branches  --  not just the judiciary, as the Court thought in Dickerson, and not just the executive, as Mr. Holder's 2010 policy statement seems to assume.

My own view of what would work best is for the Department to propose, and Congress to adopt, what I will call Section 3502.   In substance, such a statute would be similar to existing Department policy:  It would allow unwarned interrogation to continue in order to elicit information necessary to counteract an immediate threat  --  and to continue beyond that, where there is any reasonable basis for believing the suspect has intelligence about on-going or pending terrorist operations even if not related to an immediate threat.

In order for the Justice Department to propose such legislation, it would have to eat some crow.  It was, after all, the Department  that urged the Supreme Court to view Miranda's regimen as an arm of the Fifth Amendment, untouchable by Congress, rather than as Constitutional common law which, while in aid of the Fifth Amendment, could, like any other aspect of common law, be modified by legislation.

Likewise, for the Court now to accept the Section 3502  I propose, it would have to step back from its Dickerson holding.  This might not be all that hard to do, however.  First, Dickerson left plenty of wiggle room, particularly in the passage I read to you about how "no Constitutional rule is immutable" and how, "No court can possibly foresee the circumstances" the future will hold.  Second, Dickerson has not gone unscathed, starting but hardly ending with Justice Scalia's merciless dissent  --  a dissent that puts on graphic display the Court's numerous earlier discussions of Miranda as a prophylactic for, not a component of, the Fifth Amendment.  Third, sometimes Supreme Court decisions have a day when the country understands that events have left them behind.  For Dred Scott, it was April 9, the day Lee surrendered.   For Dickerson, one must wonder whether it was September 11.

That will introduce my closing remarks, in which I want to return to basics.

The first basic is this:  We're in a war.  Much of what the pro-Mirandizing side misses is that the primary purpose of questioning in the circumstances we confront now is very different from the primary purpose of standard police interrogation.  The critical importance of  purpose was noted in Justice Sotomayor's majority opinion two years ago in Michigan v. Bryant.  Although that was a confrontation case, and not about interrogation, it makes the point that the Constitution's view of police questioning  --  and specifically the decision whether to permit a suspect's answers to be admitted in court  --   depends heavily on the primary purpose for which the questioning was undertaken.   If it was to deal with an "on-going emergency," as the Bryant Court put it, more leeway will be allowed.   It's difficult to imagine an on-going emergency more pressing than uncovering al Qaeda's plans for when and where the next plane will hit, the next subway station will be bombed,  or the next batch of hostages will be taken.

I believe that if we step back, we'll see that the whole debate about Miranda and terrorism, as it has been conducted up to now, has an unreal quality to it.   We're 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 a bunch of office workers walking into the World Trade Center who decided to wage a war of terror.  That war has been thrust upon us by Jihad  --  people with  21st Century weapons, 7th Century religion and Stone Age morals.   The battlefield of the past has disappeared.  As the world has learned in Israel, Kabul, London, Madrid, Nairobi, Boston and this city, the battlefield now is our airplanes,  public squares and skyscrapers.

In WWII, when we captured enemy combatants and demanded that they tell us  where the next attack was planned  --  then,  whether or not they could later be criminally prosecuted, as some of them were  --  it would have been considered deranged to require that they be advised of a right to remain silent.  We would do well to remember this when we are asked to deploy rules of domestic criminal procedure created nearly half a century ago in a world their authors could not have, and did not, imagine.

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