At least give them Miranda: an exception to prompt presentment as an alternative to denying fundamental Fifth Amendment rights in domestic terrorism cases.

• Author: Rivera, H. Joshua

It was Christmas Eve in 2009. (1) The passengers were anticipating the completion of an eight-hour trip from Amsterdam, and had just been told to put their seat-backs and tray tables in the uptight position. The flight attendants had prepared the cabin for landing and secured themselves in their jumpseats as Northwest Flight 253 made its final approach to Detroit Metropolitan Airport. One passenger, who was returning to his seat after an extended visit to the restroom, complained of a stomach ache and covered himself with a blanket. The routine nature of the landing procedure ended there. Passengers seated near the complaining, blanketed passenger--a man named Umar Farouk Abdulmutallab--began heating unfamiliar popping noises coming from his seat. (2) A small fire ignited, charring the wall panel and burning the blanket. (3) The infamous Christmas Day Bomber was attempting an act of terrorism right before their eyes. But the plastic explosives were kept from detonating when a brave passenger quickly subdued Abdulmutallab and extinguished the fire, allowing the pilots to safely land the airplane. (4)

The day seemed saved, but for law enforcement, the investigation had only begun. After taking Abdulmutallab into custody, the Federal Bureau of Investigation ("FBI") questioned him for about an hour before warning him that anything he said could be used against him in a court of law. (5) But the questions didn't stop. (6) Abdulmutallab had already given valuable information to agents: he was clearly working with al Qaeda, and agents needed to learn more. (7) Who had trained and funded him? Where were his contacts in the United States, the Middle East, and Europe; and how did they communicate? Agents struggled to elicit information from Abdulmutallab through reason, persuasion, intimidation, and negotiation, right up until December 26, 2009, when he was arraigned before a magistrate and given defense counsel. (8) At that point, all communication ceased, for, on the advice of his defense attorney, Ahdulmutallab refused to continue to cooperate with American officials. (9)

Thus began a process of pleading and bargaining with the FBI that lasted several months. Abdulmutallab eventually began to cooperate again, providing names, dates, locations, and procedures of al Qaeda, but by then it was too late. (10) Al Qaeda had undoubtedly learned of his betrayal and had had months to change its practices. (11)

Criticism erupted over the government's handling of the incident. Public officials argued that Miranda warnings should never have been read, the Central Intelligence Agency ("CIA") should have been notified, and that there should have been more time for questioning. (12) Did the FBI get it wrong? At the heart of this question rests a conflict between the need to gather intelligence to protect American soil and the need to criminally prosecute suspected terrorists who are apprehended in the United States.

INTRODUCTION

Since the 9/11 terrorist attacks, the question of how to protect the nation against the threat of terrorism while respecting constitutional due process has been at the forefront of political debate. (13) Conservatives generally advocate for criminal proceedings that allow greater latitude in gathering intelligence, like military tribunals, in lieu of civilian criminal courts where such latitude would require judges to exclude exculpatory evidence on due process grounds. (14) Liberals diminish the urgency of gathering such intelligence and decry efforts to limit due process as unconstitutional and anti-American. (15)

However, both the Bush and Obama Administrations have guarded against the threat of terrorism by modifying or limiting the procedural rights available to suspected terrorists, generally with congressional support, either by channeling such suspects through the military tribunal system, or by constricting suspects' procedural rights in Article III courts. (16) There is significant debate about how such suspects should be tried, but parties generally agree that the key objective is to protect national security while preserving the criminal justice system. (17)

This objective applies differently in different legal scenarios involving the capture of suspected terrorists. There are at least four such scenarios: (i) American forces capture suspected terrorists overseas and detain them as foreign combatants under American supervision but in places where the United States is not sovereign; (18) (ii) American forces capture and detain suspected terrorists overseas under foreign supervision; (19) (iii) American forces capture and detain suspected terrorists overseas for a period of time before moving them to the United States for further proceedings; (20) and (iv) American forces capture terrorists domestically and detain them within the United States, as in the case of Abdulmutallab. (21) Each scenario represents a different context in which the concerns of national security and the integrity of the criminal justice system need to be reconciled. (22) This Note will focus on the final scenario, in which a suspected terrorist is arrested and detained domestically. While the three other scenarios present some difficulties for intelligence-gathering and due process violations, they differ from the last scenario in that suspected terrorists captured overseas are not immediately subject to Article III jurisdiction (23) because of provisions in the Military Commissions Act of 2006. (24) By contrast, when terrorists are captured and detained in the United States, the jurisdiction of Article III courts is automatically implicated because federal or local law enforcement will apprehend the terrorists and must decide when to give Miranda warnings and when to present the suspect before a magistrate. (25) This Note will assess possible ways to reconcile the tension between preserving due process in the civilian criminal justice system and ensuring success in the intelligence-gathering and terrorism-prevention missions of the government's national security apparatus.

The Obama Administration provided one such solution in its recent decision to limit Miranda rights for suspected terrorists apprehended in the United States under certain "exigent circumstances," as determined by executive branch agencies. (26) In October 2010, the Department of Justice and the FBI issued a memorandum outlining modifications to the use of Miranda warnings "for custodial interrogation of operational terrorists who are arrested inside the United States." (27) This memorandum asserts that the central concerns of national security require interrogating suspected terrorists for the purpose of gathering intelligence on "terrorist activities and impending terrorist attacks" and detaining them to prevent a "continuing threat" to the American public. (28)

The memorandum instructs FBI agents to ask "any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents." (29) Only once "all applicable public safety questions have been exhausted" are agents instructed to advise suspects of their rights under Miranda. (30) This appears consistent with post-Miranda Supreme Court cases that established a "public safety" exception to the Miranda doctrine. (31) Relying on that precedent, the memorandum implicitly suggests that agents have not been granted any greater authority beyond that already granted by the Supreme Court. (32)

However, the final instruction in the memorandum asserts that certain circumstances may call for continued questioning of the arrestee without giving any Miranda warnings, even in the absence of an immediate threat, so long as agents determine that further intelligence-gathering is necessary. (33) Those opposed to the memorandum have claimed that this instruction reaches beyond the power granted to law enforcement by the Supreme Court and improperly modifies criminal defendants' due process rights. (34) Indeed, the memorandum itself recognizes that it calls for a "significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case." (35) The Obama Administration, however, claimed that the memorandum merely clarified flexibility that already existed in the Supreme Court's post-Miranda jurisprudence and did not modify any constitutional right. (36)

This Note will argue that the final instruction in the FBI memorandum fails to provide a constitutionally appropriate or procedurally effective solution to the conflict between the need for integrity in criminal prosecution and the need to protect national security via intelligence-gathering. Instead, the memorandum has undermined defendants' constitutional due process rights and prescribed procedure that is inconsistent with its stated goals. This Note will suggest that modifying the "prompt presentment" exclusionary rule is a better constitutional and practical option to allow the executive or Congress to grant interrogators more freedom in questioning suspected terrorists; for while the Court has unequivocally determined that Miranda warnings are constitutionally required, (37) the Constitution does not definitively require prompt presentment. (38) Part I of this Note will provide jurisprudential background on Miranda and the public safety exception to provide context for the Obama Administration's relaxation of Miranda requirements for suspects of terrorism. Part II will analyze the FBI memorandum and its potential impact on Miranda, as well as some possible judicial responses. Part III will discuss the current state of the prompt presentment doctrine, and then suggest how the Administration, and Congress could modify the existing doctrine of prompt presentment to better reconcile concerns of national security while preserving criminal defendants' constitutional rights in the ongoing "war on terror." Part IV will conclude by assessing the...