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
 
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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 Courts thinking,
perhaps most importantly that of Chief Justice Warren. My thinking on the
Miranda issueits historical basis, its application to terrorism, and its costs a nd
benefitshas 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 eventsis
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).

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