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Miranda Warnings for Terror Suspects?

Since the capture of Ahmed Khan Rahami for the weekend bombing in NYC that injured 29 people, it has become clear that Rahami is a Jihadist.  A couple of years ago, his father said point-blank that he was a terrorist; he has traveled abroad to become steeped in radicalism, and his social media writings suggest the typical Jihadist hatred for the United States.

For fifty years, we have been required to give Miranda warnings to suspected criminals undergoing custodial questioning.  The question is whether that requirement should be extended beyond the standard criminal to a man more appropriately looked upon as an enemy combatant.

I addressed this issue once before, discussing the underpants bomber captured at the Detroit airport.  Some readers have asked me to link that discussion, and I do so here.


The real issue, it seems to me, is what does the label "terror suspects" actually mean in terms of the legal obligations society has for dealing with them. It's all well and good to talk about how silly Miranda is with respect to them, but the reality is that Miranda is silly with respect to anyone, so then we get to the question of whether we can exempt "terror suspects" from Miranda.

It seems the answer is no. Like it or not, the Fourth Amendment really doesn't seem to turn on whether someone is inspired by the things that inspired Dylann Roof (no one seems to be arguing that Roof isn't entitled to the Fourth Amendment) or the things that inspired Rahami. And what constitutes "terror" (e.g., does the firebombing in California to drive African-Americans out of their homes constitute "terrorism") is inherently subjective.

But what really nails it down--if people like Rahami are to be treated in a way other than ordinary criminals with respect to the Fourth Amendment, then the only conceivable category is an "enemy combatant" a la Jose Padilla. And if they are enemy combatants, there are a lot of other ramifications to that, which may or may not be justifiable, e.g., enemy combatants, unless wounded or otherwise hors de combat, may be shot on sight (that's how it works--combatants can be shot at). Think the judiciary would buy that?

If, based on the totality of the circumstamces, the "primary purpose" of the question is anything other than building a case against the terrorist (such as protecting the public at large) then no Miranda.

This standard, like the one Bill suggests, borrows from the Court's Confrontation Clause jurisprudence. It is less suspect-friendly than the Court's current definition of "interrogation." And it is broad enough to permit courts to conclude that the questions were proper without providing Miranda warnings.

Also, in cases, such as Rahami's, where there is solid evidence of guilt without his statements, there is absolutely no reason to give a Miranda warning.

Paul, you're right that Miranda isn't required--it's a condition precedent to the introduction of evidence in a criminal trial. However, I take issue with your "primary purpose" test--there is no way Quarles, fairly read, permits answers elicited from stationhouse interrogations to be admissible.

Bill and I went around a bit on an earlier thread about Quarles and the "public safety exception."

federalist, the Court has defined the term "interrogation" to include any words or conduct that is "reasonably likely to elicit an incriminating response."

What I am suggesting is that Court, instead of focusing in on the nature of the questions exclusively, could have (and in the future may) define "interrogation" by looking to the objectively assessed primary purpose of the questioner. (As is done on the context of the Confrontation Clause to determine if a witness's response is "testimonial." And as Bill suggests in his earlier comments.)

Is there any constitutional reason that the Court could not have used the "primary purpose" test to define "interrogation," instead of the broader formulation set forth in Innis?

I don't think that dog will hunt. First of all, "interrogation" is "interrogation" no matter what the purpose is. So are we going to pretzelize our law further? Results-oriented doesn't begin to describe what you propose, and haven't we seen enough of that already in our "law"? Now I get that Miranda is a mess (see Dickerson) and that the idea that a little more messiness is somehow verboten has the odor of calling for some modicum of modesty in a brothel, but really, are we going to let unwarned statements in when we think that the guy may have cohorts who are going to, in the future, harm public safety, but keep them out when they are backward-looking only?

Seems unworkable to me.

Are we going to let a declarant's inculpatory hearsay statements in (against a criminal defendant) when the interrogators believe that the declarant may have cohorts who are going to, in the future, harm public safety, but keep them out when they are only backward-looking (i.e., when the interrogators primary purpose was to protect the public vs. to build a case against a particular suspect)?

Yes. See Crawford and its progeny.

If the test is workable for purpose of the 6th Am./Confrontation Clause, I don't see any reason it isn't workable in the 5th Am./Miranda context.

Um, other than the fact that you make Swiss cheese out of Miranda. If the idea is that we keep out statements because they are involuntary (or, in reality, because the sporting theory of justice has been smuggled into the constitution), then the distinction really doesn't make sense. Now I get that other unwarned statements are "exceptions" to Miranda and that creates a lot of tension--but the crux of Miranda is that using a defendant's unwarned stationhouse interrogations as evidence against the defendant is verboten--to have an exception to that based on forward-looking/backward-looking is manifestly something that cannot be the product of what we call "common law." It's too contrived and too results-oriented.

paul, I really am curious--this is what Quarles says about Miranda:

"The Miranda decision was based in large part on this Court's view that the warnings which it required police to give to suspects in custody would reduce the likelihood that the suspects would fall victim to constitutionally impermissible practices of police interrogation in the presumptively coercive environment of the station house."

So, given that, how in the world is a forward-looking/backward looking distinction relevant to the Fifth Amendment question? Are you folding up the tent? Or do you have further objections to my argument?

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