Relearning Lessons of History: Miranda and Counter-terrorism

• Author: Amos N. Guiora
• Position: Professor of Law, S.J. Quinney College of Law, University of Utah.
• Pages: 1147-1174

Relearning Lessons of History: Miranda and

Counterterrorism

Amos N. Guiora∗

Umar Farouk Abdulmutallab’s attempt to blow up Northwest

Flight 2531 and Umar Faisal Shahzad’s attempt to blow up an SUV

on New York City’s 42nd Street2 led many to question whether

terrorism justifies denying Miranda protections to suspected

terrorists beyond the public safety exception.3 As the November

Copyright 2011, by AMOS N. GUIORA.

∗ Professor of Law, S.J. Quinney College of Law, University o f Utah.

There has been, over the years, an enormous amount of scholarly literature

addressing Miranda, its effects, costs, and benefits. In addition, there was

significant literature pre-Miranda that undoubtedly shaped the Court’s thinking,

perhaps most importantly that of Chief Justice Warren. My thinking on the

Miranda issue—its historical basis, its application to terrorism, and its costs a nd

benefits—has been shaped by the following combination of factors: my

professional experience as prosecutor and judge in the Israel Defense Forces and

the Judge Advocate General Corps; researching (including interviews with U.S.

interrogators based in Iraq) for my book, Constitutional Limits on Coercive

Interrogation; extended conversations and exchanges with Professor Lewis Katz

(whose classroom discussions from 1984 regarding Miranda serve as the basis

for how I teach Miranda today); interaction with law enforcement officials; my

debate with my good friend and colleague Professor Paul Cassell, who has been

the most forceful advocate for denying Miranda rights to suspected terrorists;

and the extraordinarily rich and thoughtful pre- and post-Miranda scholarship

from which I enormously benefitted.

Many thanks to Meredith McNett, Information Delivery Services Librarian at

S.J. Quinney Law Library, for her invaluable assistance.

1. Richard Sisk et al., Foiled Terror Plot Aboard Northwest Flight 253 Sparks

Strict Scrutiny Rules for Air Passengers, N.Y. DAILY NEWS (Dec. 26, 2009),

http://www.nydailynews.com/news/national/2009/12/26/2009-12-26_foiled_terror_

plot_aboard_northwest_flight_253_sparks_strict_security_rules_for_.html.

2. Al Baker & William K. Rashbaum, Police Find Car Bomb in Times

Square, N.Y. TIMES, May 2, 2010, at A1, available at http://www.nytimes.com/

2010/05/02/nyregion/02timessquare.html.

3. For public commentary and debate regarding Miranda and possible

exceptions in the aftermath of terrorist attacks, see Richard M. Esenberg, You

Have the Right to Remain Silent, MAR Q. UNIV. L. SCH. FAC. BLOG (May 12,

2010), http://law.marquette.edu/facultyblog/2010/05/12/you-have-the-right-to-

remain-silent/; Orin Kerr, Legislating Miranda Rights for Terrorism Cases?,

VOLOKH CONSPIR ACY (May 10, 2010, 2:56 AM), http://volokh.com/2010/05/10/

legislating-miranda-rights-for-terrorism-cases; Brian Levin, Exception to Miranda

Takes Center Stage in Times Square Plot, HUFFINGTON POST (May 4, 2010, 3:28

PM), http://www.huffingtonpost.com/brian-levin-jd/exception-to-miranda-take_b_

563075.html; Rick Pildes, Should Congress Codify the Public Safety Exception to

Miranda for Terrorism Cases?, BALKINIZA TION (May 6, 2010), http://balkin.

blogspot.com/2010/05/should-congress-codify-public-safety.html; Michael Stern,

A Final Word on Congress and Miranda, POINT OF ORD. (May 8, 2010), http://

www.d1040331.dotsterhost.com/applications/serendipity/index.php?/archives/

1148 LOUISIANA LAW REVIEW [Vol. 71

27, 2010 arrest of a naturalized U.S. citizen, Mohamed Osman

Mohamud, on suspicion of using a weapon for purposes of causing

mass destruction4 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.”5 In New York v. Quarles,6 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. In the immediate aftermath of Shahzad’s terrorist

attack, Attorney General Eric Holder inexplicably aided advocates

of this claim when he stated on ABC’s “This Week”:

The [Miranda] system we have in place has proven to be

effective. . . . I think we also want to look and determine

whether we have the necessary flexibility––whether we have

222-A-Final-Word-on-Congress-and-Miranda.html; Michael Stern, Congress,

Miranda, and the “Public Safety” Exception, POINT OF ORD. (May 17, 2010),

http://www.d1040331.dotsterhost.com/applications/serendipity/index.php?/archive

s/219-Congress,-Miranda-and-the-Public-Safety-Exception.html; Dan E. Stigall,

The Public Safety Exception to Miranda: A Comparative Analysis, COMP. L. BLOG

(May 7, 2010), http://comparativelawblog.blogspot.com/2010/05/public-safety-

exception-to-miranda.html.

4. Somali-American Accused of Plotting to Bomb Oregon Tree-Lighting

Event, CNN.COM (Nov. 27, 2010, 9:27 PM), http://www.cnn.com/2010/CRIME/

11/27/oregon.bomb.plot/index.html.

5. Miranda held that police must give criminal suspects in custody, before

they are interrogated, a warning informing them of their rights. Miranda v.

Arizona, 384 U.S. 436 (1966). Although this warning varies slightly by

jurisdiction, the typical warning is:

You have the right to remain silent. Anything you say can and will be

used against you in a court of law. You have the right to speak to an

attorney, and to have an attorney present during any questioning. If you

cannot afford a lawyer, one will be provided for you at government

expense.

The Miranda Warning, U.S. CONST. ONLINE, http://www.usconstitution.net/

miranda.html (last modified Jan. 8, 2010).

6. New York v. Quarles, 467 U.S. 649 (1984).