Strange bedfellows: how expanding the public safety exception to Miranda benefits counterterrorism suspects.

• Author: Corn, Geoffrey S.

Introduction I. Miranda, Public Safety, and the Terrorism Interrogation Dilemma II. Miranda and Quarles. Why Public Safety Does Not Always Mean Protecting the Public III. The Indefinite Detention/Military Commission Alternative A. Authorization for Use of Military Force B. National Defense Authorization Act [section] 1021 IV. Reconciling an Expanded Quarles Exception with Miranda A. The Evolution of the Miranda Rule: Focusing on the Core Concern of the Risk of Police Calculation B. Other Indicators of the Valid Influence of the Terrorism Threat: The Special Needs Doctrine Analogy V. Tailoring a Terrorism Expansion of Public Safety to a Narrow Range of Cases Where the Confession Is Case Dispositive VI. How Expanding the Quarles Exception Is a Net Gain for Terror Suspects: Incentivizing the Article III Prosecution Option Conclusion The last thing we may want to do is read Boston [Marathon bombing] suspect Miranda Rights telling him to "remain silent.' ... It captured, I hope [the] Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes. (1)

[The Boston Marathon Bombing] is Exhibit A of why the homeland is the battlefield. (2)

INTRODUCTION

The Boston Marathon bombing, along with the prior "shoe" (3) "underwear" (4) and "Times Square" (5) bombers, has prompted debate (6) on the applicability of traditional criminal procedure principles to counterterrorism investigations and prosecutions. Much of the discussion focuses on the efficacy and even appropriateness of applying the public safety exception to the Miranda rights warning requirement. What is missing is underscored by Senator Graham's comments--the possibility of indefinite detention and trial by military commission fundamentally alters the implicit balance within the public safety exception.

In New York v. Quarles, the Supreme Court created what has come to be known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement: when a police questions a suspect in custody in response to an imminent threat of danger to the officer or the public, the confession will be admissible even if the officer failed to provide Miranda warnings and obtained a waiver. (7) In her opinion in Quarles, concurring in part and dissenting in part, Justice O'Connor reminds us that Miranda does not prohibit public safety questioning; Miranda simply restricts using the statement as evidence. (8) In essence, Miranda requires the government to make a choice--question a suspect without first advising them of the Miranda rights and obtaining a waiver of those rights in order to protect the public, or advise the subject and seek a waiver to protect a future prosecution. This Article challenges whether that choice remains valid.

Implicit in that formulation is that failing to advise a suspect questioned in a custodial setting of their Miranda rights may result in the government foregoing the opportunity to incapacitate the individual. (9) This Article posits that the alternative "remedies" of indefinite detention and trial by military commission fundamentally alter the equation Justice O'Connor laid out in Quarles. This alternative option for incapacitating a suspected terrorist operative may, in certain situations (potentially even involving a U.S. citizen), eliminate the binary "warn and risk imminent danger, or don't warn and risk the ability to prosecute" choice equation that was central to the Quarles decision.

Instead, the burden of risk associated with counter-terrorism questioning has substantially shifted to the terrorism suspect. Unlike the response options available to government law enforcement and prosecution agents prior to September 11, 2001, the government does not necessarily risk the ability to successfully prosecute (due to inadmissibility of the confession)--and thereby incapacitate--the terrorist suspect if a violation of Miranda results in inadmissibility of the suspect's confession. Rather, the government may now both question in violation of the Miranda warning and waiver requirement and then incapacitate the suspect through indefinite detention and/or alternatively prosecute via a legislatively created military commission employing perpetually evolving, and less rigorous procedures, than an Article III court. (10)

This Article argues that expanding the scope of the PSE to allow for more extensive interrogation of terrorism suspects will inure to the suspects' benefit. It will arguably incentivize the normal law enforcement disposition for suspected terrorist suspects, and thereby mitigate the likelihood that such suspects will be subjected to military administrative detention. This in turn will enhance the probability of finding resolution in an Article III court, rather than of subjecting the suspects to indefinite detention or trial by a military commission.

Part I juxtaposes the well-established Miranda holding against the dilemma of interrogating terrorism suspects. Part II then discusses Quarles and explains how public safety does not always equate to protecting the public. Part III explores indefinite detention and military commission alternatives to traditional prosecution in an Article III court. Part IV then explains how those alternatives undermine the Quarles equation. Part V reconciles expanding the Quarles PSE with Miranda, focusing on the risk of police calculation and then by analogizing. Part V then draws support for an expanded PSE by analogizing it with the special needs exceptions to the warrant and probable cause requirement of the Fourth Amendment, illustrating how an objective critique of the primary purpose of police questioning can effectively regulate the applicability of an expanded PSE. Part VI then outlines the contours of the proposed expansion of the PSE. Part VII concludes by detailing how such an expansion would incentivize the Article III court prosecution option and constitute a net gain for terror suspects.

By focusing on actual voluntariness, an expanded PSE would be consistent with the trend in the Supreme Court's Miranda jurisprudence so long as the statement is actually voluntary. Ultimately, the price of denying the government critical counterterrorism information and the risk of subjecting the suspect to unwarned questioning with subsequent preventive, indefinite, detention (because the statement is inadmissible) is not worth the benefit of compliance with a mere prophylactic rule, so long as the court validates that the statement was in fact voluntary.

1. MIRANDA, PUBLIC SAFETY, AND THE TERRORISM INTERROGATION DILEMMA

   Few Supreme Court decisions in our nation's history have generated more controversy than Miranda v. Arizona. (11) In Miranda, the Supreme Court concluded that the then-existing due process "totality of the circumstances" test for assessing when a confession was actually coerced was insufficient to protect individuals from the inherently coercive environment of custodial interrogation. (12) The Court then concluded that this necessitated the imposition of a rights warning requirement to offset this inherent coercion. (13) Furthermore, whenever an individual was subjected to custodial interrogation, the government would bear the "heavy burden" of proving a knowing and voluntary waiver of these noticed rights. (14) This combined warning and waiver requirement would establish that the suspect's statement was not the product of this inherent coercion, thereby restoring confidence that the statement or confession was the product of a voluntary relinquishment of the privilege against compelled self-incrimination. (15) Accordingly, a suspect's statements, both inculpatory and exculpatory, (16) obtained during custodial interrogation would be admissible only when the government established a knowing and voluntary waiver of the required Miranda rights. (17) Furthermore, effective waiver required police to prove that they informed the suspect of a series of rights articulated by the Court, rights that are today a ubiquitous aspect of American culture. (18) According to the decision,

   To summarize, we hold that, when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. (19) Miranda therefore established a presumption-based rule of admissibility: statements made absent a valid waiver are presumed involuntary and therefore inadmissible; statements made following waiver, however, are presumed voluntary and are admissible. (20) Nevertheless, only one of these presumptions was conclusive: the presumption of involuntariness. (21) The Miranda opinion provided for no exception to the exclusion of statements obtained absent valid waiver. (22) In contrast, statements preceded by such a waiver, while presumptively voluntary, might still be excluded if actually...