Tuesday, April 12, 2011
Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Relearning Lessons of History: Miranda and Counterterrorism (Louisiana Law Review, Vol. 71, 2011) on SSRN. Here is the abstract:
Umar Farouk Abdulmutallab’s attempt to blow up Northwest Flight 253 and Umar Faisal Shahzad’s attempt to blow up an SUV on New York City’s 42nd Street led many to question whether terrorism justifies denying Miranda protections to suspected terrorists beyond the public safety exception. As the November 27, 2010 arrest of a naturalized U.S. citizen, Mohamed Osman Mohamud, on suspicion of using a weapon for purposes of causing mass destruction made clear, the list of "triggering events" is constantly evolving.
The argument, in a nutshell, is that extending Miranda protections to a recently arrested suspected terrorist would significantly hamper law enforcement’s ability to question the individual, thereby endangering the public. In other words, denying Miranda protections would both facilitate arrests of additional suspected terrorists and prevent further acts of terrorism.
In Miranda v. Arizona, the Court created the "Miranda warning"; in New York v. Quarles, the Court created an exception to Miranda according to which public safety justifies an absence of the warning, and therefore statements given to police in context of public safety are admissible in court.
Those advocating "Miranda denial" claim that the public safety exception to Miranda set forth in Quarles is insufficient in the face of terrorism. My deep objection to denying suspected terrorists Miranda protections is based on a ready willingness to minimize rights for a loosely defined category of individuals in the immediate aftermath of a terrorist attack. Second, I am concerned by the simultaneous unwillingness to recognize objective "clear and present" standards in defining 'threats'. The Supreme Court has already established a public safety exception to Miranda; expanding the exception is fraught with danger, particularly when the proposal is raised in the immediate aftermath of an act of terrorism. My skepticism about such an exception draws strength from law enforcement officials who have neither advocated nor requested such a measure, suggesting that the existing standard is sufficient for lawful and effective domestic counter-terrorism. Simply put, Quarles’s public safety exception is sufficient; expansion beyond that is both unwarranted and dangerous.
Unfortunately, American history is replete with examples of the high price innocent individuals have paid for executive branch excess, aided by an acquiescent Congress and docile Supreme Court. This past highlights the extraordinary dangers inherent in an unwarranted expansion of executive power. The past, both near and far alike, provides clear and direct guidance regarding the dangers of creating exceptions in the face of a threat, whether real or imagined. In weighing whether to expand the exception, and thereby to argue that Quarles is insufficient, our most poignant guide should be the timeless words of the poet and philosopher George Santayana: "Those who cannot remember the past are condemned to repeat it." In Miranda, the Supreme Court penned some of its most important words; Quarles articulates an exception to those words.
This Article argues that expanding that exception poses significant risks; any potential benefits do not outweigh the certain costs. Part I details the critically important history underpinning Miranda and the fundamental protections it enshrines for individuals before setting forth the foundations of the public safety exception in Quarles. Part II analyzes the application of Miranda - Quarles to terrorism and counterterrorism to demonstrate the dangers of expanding any exceptions to Miranda as a response to terrorism. Finally, Part III draws together lessons from the past with a look to the future.
In expanding Escobedo and providing greater protections to individuals subject to police interrogation - even those not deemed specific suspects - Chief Justice Warren clearly looked back into the dark pages of interrogations in the U.S. The history that guided Chief Justice Warren must serve as an important reminder with respect to denying suspected terrorists Miranda protections.
Terrorism poses extraordinary dangers; of that, there is little doubt. The last four decades have been marked by attack after attack against innocent people worldwide defined as "legitimate targets" by terrorists. This Article defines "terrorism" as an attack by a group or individual in an effort to advance a cause - religious, social, economic, or political - by killing, harming, or intending to injure innocent civilians, or by intimidating the civilian population from conducting its daily life.
In applying the Miranda-Quarles framework to terrorists, the question is what the Supreme Court intended in both cases; that is, what are the cases’ respective core principles with respect to terrorism. Chief Justice Warren’s words are extraordinarily clear and powerful. They reflect both his deep understanding of the American interrogation reality and the extraordinary - and unforgiveable - price paid by untold numbers of people subjected to methods ranging from the third degree to the unconscionable. Chief Justice Warren’s reference to Brown, White, Wade, and Ashcraft is not just judicial craftsmanship; it is also a clarion call to state agents that the rule of law demands protection for suspects. The criminal procedure revolution does not limit law enforcement’s ability to detain for either interrogation or "on the scene" crime prevention. The criminal procedure revolution does impose on law enforcement the obligation to inform the suspect of the right to representation by counsel during interrogation and the right to remain silent.
As Miranda’s language makes abundantly clear, creating - and protecting - both rights is essential; therefore, as I argue in the article, to expand Miranda beyond Quarles is both unwarranted from a law enforcement perspective and represents an unnecessary ‘chipping away at Miranda.