As part of the global "War on Terror," federal agents intentionally delay issuing Miranda warnings to terrorism suspects during custodial interrogations. They delay the warnings presuming that unwarned suspects will more freely offer vital national security intelligence. After a suspect offers the information he has, agents administer Miranda warnings and attempt to elicit confessions that prosecutors can use at the suspect's trial. No court has ruled on the constitutionality of this two-step national security interrogation process to determine whether admitting the second, warned confession is allowed under Miranda v. Arizona and its progeny. A fragmented Supreme Court examined two-step interrogations generally in Missouri v. Seibert but offered no clear holding. This Note argues that while confessions derived from two-step national security interrogations are admissible under Justice Kennedy's Seibert test, courts should instead apply Justice Souter's Seibert test to limit the use of such interrogations. This Note further contends that permitting two-step national security interrogations contravenes the spirit, if not the letter, of the Fifth Amendment as well as decades of Miranda jurisprudence.
TABLE OF CONTENTS INTRODUCTION I. PROPER APPLICATION OF JUSTICE KENNEDY'S SEIBERT TEST A. Situating Seibert in the Broader Context of Miranda Jurisprudence B. Seibert and Justice Kennedy's Opinion II. JUSTICE KENNEDY'S TEST WEAKENS MIRANDA A. Application of Justice Kennedy's Test to Ahmed Demonstrate a Defendant's Disadvantages B. The Subjective-Motive Inquiry Allows Agents to More Easily Delay Miranda Warnings C. The General Terrorist Threat Does Not Justify Weakening Fifth Amendment Protections III. JUSTICE SOUTER'S SEIBERT TEST IS SUPERIOR TO JUSTICE KENNEDY'S A. Justice Souter's Test Is More Consistent with Miranda Jurisprudence B. Under Justice Souter's Test, a Court Would Suppress Ahmed's Confession C. Marks Does Not Bar the Use of Justice Souter's Test IV. REPAIRING JUSTICE KENNEDY'S TEST: REVIVING THE SELFINCRIMINATION CLAUSE A. Evidentiary Standards That Honor the Fifth Amendment 1. Scrutiny of Official Testimony 2. Burden of Proof 3. A Mixed-Motive Presumption B. Law Enforcement Need Not Fear the Miranda Warnings CONCLUSION INTRODUCTION
Before he pled guilty to conspiring to support the al-Shabaab terror organization in June 2012, (1) Mohamed Ibrahim Ahmed moved to suppress incriminating statements he had made to federal agents. (2) Ahmed made these statements during an interrogation that proceeded in two steps. First, during the interrogation's "dirty" stage, American agents interrogated Ahmed without issuing the warnings required by Miranda v. Arizona. (3) Second, during the interrogation's "clean" stage, American agents again interrogated Ahmed but this time issued the Miranda warnings. (4) According to the government, agents hoped that their failure to warn during the interrogation's first stage would lead Ahmed to speak more freely about information germane to national security. (5) According to Ahmed, agents also hoped that issuing warnings before the second stage would allow prosecutors to use Ahmed's second-stage incriminating statements at trial. (6) In both phases of the interrogation, Ahmed's statements confirmed that he was involved with the al-Shabaab terror organization. (7)
After his indictment, Ahmed moved to suppress these incriminating statements (8) and challenged the agents' two-step process as a "clever stratagem" and a mere "ruse" to violate his Fifth Amendment right against self-incrimination. (9) The government opposed the motion, asserting that the post-warning, second-step confessions were admissible under Missouri v. Seibert. (10)
In Seibert, a deeply divided Supreme Court considered the admissibility of confessions elicited during two-step interrogation processes. (11) Specifically, an officer in that case testified that he had intentionally undertaken a two-step process for the explicit purpose of vitiating the effectiveness of the defendant's Miranda warnings. (12) Although five justices held that Seibert's incriminating statements were inadmissible, they disagreed in three separate opinions as to why. (13) Consequently, Seibert did not issue a clear holding. (14)
Seibert's two most influential opinions--Justice Kennedy's solo concurrence and Justice Souter's four-vote plurality (15)--analyzed the interrogation procedure in different ways. (16) Justice Kennedy's opinion concluded that a defendant's confession is presumptively inadmissible when elicited through a two-step interrogation process that police deliberately undertake "in a calculated way to undermine the Miranda warning." (17) This test focused on the purposefulness of the law enforcement agent's actions as well as the motives underlying this conduct. By contrast, Justice Souter's test focused on the defendant's experience during the interrogation. (18) Justice Souter directed courts to admit second, warned confessions only if the Miranda warnings functioned "'effectively' as Miranda requires." (19) While a majority of the federal circuits have adopted Justice Kennedy's opinion as Seibert's rule, (20) substantial grounds remain to encourage the application of Justice Souter's approach. (21)
The prosecution and defense in Ahmed both sparred within the confines of Justice Kennedy's Seibert concurrence in motions before the Southern District of New York because the Second Circuit had previously found Justice Kennedy's test binding. (22) Accordingly, the Ahmed parties largely ignored Justice Souter's plurality opinion, and Ahmed's battle for suppression and the government's Seibert defense largely focused on the federal agents' subjective motive for pursuing the two-step interrogation. (23) The government argued "that the agents' [sole] intent was to obtain information relevant to the national security of the United States and thus to protect the public." (24) The defense countered that the interrogation served impermissible, "dual" purposes: to gather evidence for national security and to undercut the effectiveness of Ahmed's Miranda warnings. (25)
It remains unclear whether post-warning confessions are admissible after law enforcement intentionally conducts an unwarned "dirty" interrogation purportedly to elicit vital information for national security. In Ahmed, Judge Castel in the Southern District of New York never had a chance to rule on the admissibility of Ahmed's post-warning statements because Ahmed preemptively pled guilty. (26) The guilty plea eliminated an important opportunity to clarify the law in a case presenting a new permutation of two-step interrogations. In these novel circumstances, the government's proffered motive for undertaking a two-step interrogation was arguably credible enough to pass Justice Kennedy's intent- and motive-based test. (27)
While many lower courts have grappled with Seibert in the domestic criminal justice context, it appears that no court has actually determined what impact first-step national security interrogations have on the admissibility of second-step post-warning confessions. This is not a mere technical curiosity. The two-step national security interrogation strategy at issue in Ahmed is an important tool in the federal government's "War on Terror." (28) Similar interrogation processes have been used in many high-profile antiterrorism cases, including during the questioning of the Detroit "Undergarment Bomber," (29) the "Times Square Bomber," (30) and, it appears, the surviving Boston Marathon bomber. (31) The admissibility of confessions derived from two-step national security interrogations directly affects what prosecutorial and investigatory tools are available to government officials both at home and abroad. The legality of such interrogation strategies also speaks broadly about longstanding tensions between the competing desires for individual freedom and collective security.
This Note argues that while confessions derived from two-step national security interrogations are admissible under Justice Kennedy's Seibert test, courts should instead apply Justice Souter's Seibert test to limit the use of such interrogations. This Note further contends that permitting two-step national security interrogations contravenes the spirit, if not the letter, of the Fifth Amendment as well as decades of Miranda jurisprudence. (32) Part I describes Miranda's evolution and explains how to properly apply Justice Kennedy's Seibert test to two-step interrogations. Part II demonstrates that Justice Kennedy's test would render Ahmed's particular second-stage confessions admissible, contrary to the spirit and letter of prior Miranda jurisprudence. Part III argues that courts should adopt Justice Souter's plurality test, which would likely disallow the Ahmed two-step national security interrogation, as a better means of analyzing the admissibility of confessions elicited during any two-step interrogation. Finally, given that Justice Kennedy's test currently reigns in most federal circuits, Part IV suggests that courts can apply various evidentiary rules to repair the damage that Justice Kennedy's test wreaks on Miranda and contends that law enforcement officials need not fear giving Miranda warnings in the national security context.
PROPER APPLICATION OF JUSTICE KENNEDY'S SEIBERT TEST
To understand how these two-step interrogations affect Miranda and the Self-Incrimination Clause, it is necessary to situate Justice Kennedy's test in the context of history and current doctrine. Accordingly, Section I.A briefly addresses Miranda's evolution. Section I.B then articulates the proper application of Justice Kennedy's test.
Situating Seibert in the Broader Context of Miranda Jurisprudence
Miranda established a clear and absolute rule to protect defendants' Fifth Amendment right against self-incrimination. (33) Before Miranda, the Court's self-incrimination jurisprudence...