Table of Contents Introduction I. The Jurisprudence of Two-Step Interrogations A. Miranda v. Arizona B. Oregon v. Elstad C. Missouri v. Seibert 1. The plurality approach 2. Justice Kennedy's concurrence II. The Use of Two-Step Interrogations in Joint Counterterrorism Investigations A. Law Enforcement's Growing Role in Counterterrorism B. To Mirandize or Not to Mirandize? C. Collecting Intelligence Beyond Imminent Threat Information III. Counterterrorism Decisions Applying Seibert A. United States v. Khweis B. United States v. Abu Khatallah IV. Tailoring Seibert to Two-Step Counterterrorism Interrogations A. Working Within Justice Kennedy's Approach B. Toward a More Discerning Analysis of Interrogators' Subjective Intent 1. Looking for deliberate circumvention throughout the unwarned interrogation 2. Setting standards for intelligence personnel 3. Screening for prior knowledge of intelligence value C. Completing the Analysis: Curative Steps Conclusion Introduction
In October 2013, Abu Anas al-Libi (1) was a free man living in Tripoli, Libya. A federal grand jury in the Southern District of New York had indicted him thirteen years earlier for his role in the 1998 bombings of the U.S. embassies in Kenya and Tanzania; some of the highest-ranking members of al-Qaida at the time were his alleged co-conspirators. (2) But al-Libi had evaded capture on those charges for years, and had recently returned to Libya in the wake of Muammar Qaddafi's ouster. (3)
On October 5, 2013, a series of events was set in motion that would culminate in al-Libi's appearance before a federal judge to answer the charges against him. U.S. soldiers seized him as he was returning from prayers to his home in Tripoli and brought him aboard the U.S.S. San Antonio. (4) As the ship traversed the sea, "a cross-section of intelligence experts" interrogated al-Libi, no doubt hoping to obtain valuable intelligence from the accused veteran terrorist. (5) During that questioning, which allegedly took place in a room with no furniture over the course of a week, (6) al-Libi was not informed of his rights under Miranda v. Arizona to remain silent or to consult with an attorney. (7) What he said to those interrogators has not been released to the public. (8)
At some point, the goal of al-Libi's detention changed. Seven days after his capture, he was transferred to the custody of Federal Bureau of Investigation (FBI) agents. (9) Then, approximately one day after his final intelligence interview, the agents informed him of his Miranda rights and began questioning him anew. (10) Al-Libi waived his rights and continued talking; he would later claim that the week of intelligence interviews had deprived him of any "sense of asserting [his] own rights, or having the ability to independently determine if [he] wished to voluntarily speak." (11) But unlike the answers he gave to his intelligence interviewers, the statements al-Libi made during this second round of questioning--whether about his role in the 1998 bombings or his ties to al-Qaida leaders--were ripe for use against him in his impending prosecution.
Al-Libi was not the first suspected terrorist to be subjected to this questioning process--often referred to as a "two-step interrogation"--nor was he the last. As the government tries more terrorists in Article III courts rather than prosecuting them in military tribunals or detaining them indefinitely, agents increasingly are performing this intricate interrogation ritual, simultaneously treating suspects both as highly valuable intelligence assets and as criminal defendants.
In 2004, the U.S. Supreme Court in Missouri v. Seibert outlawed police officers' use of "question-first" tactics to obtain confessions. (12) But it has never applied Seibert to two-step counterterrorism interrogations, nor considered the effect that a confession given during an intelligence interrogation might have on a suspect's ability to understand that he can, in fact, remain silent in response to subsequent law enforcement questioning.
In fact, before mid-2017, despite the prevalence of this interrogation strategy, no lower court had issued a ruling applying Miranda and its progeny to two-step interrogations undertaken for intelligence purposes. In this vacuum of authority, commentators have put forward a range of views on the viability of the practice. One view is that confessions obtained through two-step counterterrorism interrogations should be admissible (at least when performed extraterritorially). (13) At the other end of the spectrum is the argument that focusing on the subjective intent behind the decision to pursue unwarned questioning--as Justice Kennedy's concurring opinion in Seibert requires--would leave too much room for interrogators to undermine suspected terrorists' Fifth Amendment rights in the name of intelligence. (14)
In 2017, two federal district courts became the first to decide whether terrorist suspects' warned confessions obtained through this kind of counterterrorism interrogation should be suppressed. These rulings provide observers with an opportunity to determine whether their speculation will be confirmed. Both decisions concluded that Seibert allowed the suspect's warned statements--obtained after prolonged unwarned questioning--to be admitted into evidence. (15)
This Note is the first to scrutinize two-step counterterrorism interrogations in light of these initial rulings. A close analysis of the facts of the two cases reveals potential weaknesses in the intent-based approach to evaluating two-step interrogations; when it comes to the intentions of intelligence interrogators, courts have critical blind spots. If these weaknesses are not addressed, judges seeking to learn from the two pioneering rulings may fall prey to the same misconceptions, and risk gutting what Fifth Amendment protection Seibert provides.
This Note proceeds in four Parts. Part I briefly summarizes the Fifth Amendment jurisprudence behind two-step interrogations in the criminal justice context. Part II examines the origins of two-step interrogations in counterterrorism operations. This history reveals a tension between prosecution and intelligence collection, the dual aims of modern counterterrorism investigations. Part III explores the two 2017 district court rulings, delving into the unique facts of each case to evaluate how the circumstances of each interrogation influenced the courts' respective decisions. Finally, Part IV seeks to provide a more nuanced way of evaluating two-step counterterrorism interrogations under Seibert. Given the widespread acceptance and pro-government logic of Justice Kennedy's Seibert framework, future cases will likely turn on the application of his approach. As a result, Part IV begins by contending that those concerned with safeguarding detainees' rights would do well not simply to advocate for alternatives to Justice Kennedy's approach, but also to construct meaningful doctrinal limits within it to more effectively guard against abuses. By scrutinizing the logic of the two 2017 rulings and drawing on dynamics at work within the executive branch's counterterrorism apparatus, Part IV then proposes three key modifications to Justice Kennedy's inquiry into interrogators' subjective intent.
First, courts should look for evidence of a deliberate intent to circumvent Miranda, not only at the point of the initial decision not to warn a suspect of his rights, but also throughout the unwarned phase of the interrogation. Second, courts should be more skeptical of an asserted pure intelligence-gathering motivation where the first-stage interrogators are closely tied to law enforcement. And finally, courts should be wary of the assertion that unwarned questioning was undertaken for intelligence purposes where there was no preexisting information indicating the suspect was of intelligence value. These guidelines preserve Justice Kennedy's focus on intent, but refine the inquiry to allow courts to more effectively ferret out the bad actors with which he was most concerned.
The Jurisprudence of Two-Step Interrogations
Despite their unconventional form, two-step counterterrorism interrogations are governed by the same body of law as more traditional forms of law enforcement interrogation. Like traditional interrogations, counterterrorism interrogations create the constitutional concern that a suspect might be coerced into waiving his Fifth Amendment privilege against self-incrimination. Understanding the boundaries of two-step counterterrorism interrogations, therefore, requires a brief foray into how the U.S. Supreme Court has handled interrogations in other contexts.
Miranda v. Arizona
The Court first drew the contours of modern Self-Incrimination Clause jurisprudence in Miranda v. Arizona. (16) Custodial interrogations, the Court declared for the first time, are inherently coercive. (17) Discerning a typical interrogation strategy from law enforcement handbooks, the Court discovered a disturbing trend of officers deliberately manipulating a subject's mind "to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already--that he is guilty." (18) During this process, "[e]xplanations to the contrary are dismissed and discouraged." (19)
But it wasn't just the prevalence of manipulative police tactics that led the Court to conclude that custodial interrogations are coercive. Rather, it declared that the very process of undertaking a custodial interrogation is coercive, such that, in the absence of "proper safeguards," a suspect is subject to "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." (20)
Miranda accordingly established a series of warnings that officers must provide to suspects at the outset of custodial interrogations to dispel this inherent coerciveness. (21) The...