A few years ago the Obama Administration considered asking Congress for legislation to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.” I argued that existing Supreme Court precedent did not preclude the courts from giving deference to such a statute, particularly if were supported by reasoned fact-finding and/or included alternative methods of ensuring the voluntariness of statements made by suspected terrorists.
The administration, however, did not pursue such legislation. Instead, it apparently adopted internal guidance to clarify how existing legal rules regarding custodial interrogations should be applied in the case of terrorism suspects. The New York Times published a short FBI memorandum it obtained on the issue (I assume that there are more extensive legal memoranda which have not been made public).
The positions set forth in that memorandum may now get a real life test due to yesterday’s arrest of one of the suspected Boston Marathon bombers, Dzhokhar Tsaraev, age 19. According to this article by Josh Gerstein: “’No Miranda warning to be given’ now, a Justice official told POLITICO Friday night. ‘The government will be invoking the public safety exception.’”
The FBI memorandum states “agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.” This would seem to most obviously cover questions about the location of any explosive devices or materials of which Tsaraev may be aware. More controversially, agents may ask him about other potential plots, other individuals who were involved in planning or executing the Boston Marathon bombings and contacts that he or his brother have had with foreign terrorist organizations.
Furthermore, the FBI memorandum says that “[t]here may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.” This disadvantage of invoking this further exception (lets call it the “intelligence exception”) is that the fruits of the interrogation would likely be inadmissible in court.
To further complicate matters, the bombing suspect is relatively young and badly wounded. Thus, apart from issues of unwarned custodial interrogation, Tsaraev’s lawyer (when he gets one) will probably argue that any statements by his client were involuntary due to some combination of his age, his medical condition, any medications he is receiving, explicit or implicit threats with regard to pain medication, etc.
As a practical matter, therefore, the FBI is probably all in with regard to questioning Tsaraev. In other words, once the decision is made not to Mirandize him, the agents have to proceed as if nothing that he says will likely be admissible. This may not be much of a problem given the amount of evidence that it had accumulated prior to taking the suspect into custody. Accordingly, law enforcement may feel free to be unusually aggressive in its questioning, which could raise some of issues regarding “coercive interrogations” that arose during the Bush Administration.
It would be hopelessly naïve to suggest that Congress could have obviated all of these problems by enacting legislation to define the scope of permissible interrogations for terrorism suspects. Nevertheless, it is worth noting that Congress, rather than simply complaining about executive branch actions after the fact, could actually take a stab at writing the rules that would govern these interrogations. I guess that would be hopefully naïve.