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Miranda Rights, the Public Safety Exception and Congress

By / 5.12.2010

The arrest of Faisal Shahzad has revitalized the conversation about the legal rights of terrorism suspects apprehended in the U.S. In February, I wrote that a public safety exception to ordinary Miranda procedures exists, and called it a useful tool in terrorism cases because it could allow for interrogation of terrorism suspects for a reasonable period of time before they are read their Miranda rights, as happened in the case of the Christmas Day bomber, Umar Farouk Abdulmutallab.

The incident in Times Square has given even more momentum to the idea of Miranda-less interrogations. On Sunday, Attorney General Holder came out and said that he wants Congress to pass a law specifically allowing interrogations without Miranda warnings in international terrorism cases. Such a law would obviate the need for law enforcement to rely on the current public safety exception.

Holder’s proposal is unique. The public safety exception is not the result of congressional action, but rather was created by a 1984 U.S. Supreme Court decision. In fact, all exceptions to Miranda rights under federal law come from court decisions and not from Congress. The question is this: Is it necessary for Congress to create a Miranda exception for terrorist suspects, or is the existing public safety exception enough? The congressional approach has several pros and cons.

The major benefit to Congress passing a law that explicitly creates a Miranda exception would be the specificity it would provide. Currently, law enforcement officials decide whether to invoke the public safety exception depending on whether they think a risk to public safety exists. Whether or not an officer’s belief is legitimate is determined on a case-by-case basis in court. Congress could make a law that lays out specific timeframes and circumstances under which a terrorist suspect could be interrogated without Miranda rights. Law enforcement officials would benefit greatly from knowing exactly what kinds of constraints exist.

Another benefit would be that, as long as law enforcement acted within the bounds of the statute, prosecutors would be more easily able to justify Miranda-less interrogation. As it is now, if a terrorist’s defense attorney challenges his client’s interrogation, prosecutors must show that law enforcement acted out of a legitimate concern for public safety. That process can be significantly more difficult and time-consuming than if prosecutors could simply point to a statute authorizing interrogation without Miranda.

Conversely, the existing exception’s major benefit could be its flexibility. The exception was created without specific constraints because the Supreme Court knew that it could not foresee all possible scenarios in which the exception could be applied. Similarly, Congress will not be able to foresee all possible terrorism scenarios. This could lead to a situation in which Congress creates a law that gives law enforcement less latitude than they might receive under the current exception.

It’s likely that Congress will try to pass a law that allows for a terrorist suspect to be interrogated for 48-72 hours, or even more, without being read his Miranda rights. Interrogations of such length would probably not be allowed under the existing exception. Should Congress authorize long interrogations without Miranda, expect a significant backlash from civil liberties advocates and some elected officials. Moreover, a statute granting law enforcement a great deal of flexibility could run the risk of being overturned in the courts. Stay tuned.