Miranda Rights and the Public Safety Exception

By / 2.10.2010

Over the last couple of weeks, Republicans have been going hard against the administration over its handling of Umar Farouk Abdulmutallab, the Nigerian man being held for attempting to blow up a Northwest Airlines flight on Christmas Day.

On January 26, several high-ranking Senate Republicans sent a letter to Attorney General Eric Holder asserting that the administration rushed into giving Abdulmutallab constitutional Miranda rights without first coordinating with all necessary national security agencies and ignored him as a possible “intelligence resource.” This week, Newt Gingrich appeared on “The Daily Show” to slam the “mirandizing” of Abdulmutallab (falsely claiming that the same treatment for “shoe bomber” Richard Reid was fine because he was a U.S. citizen — Reid is British), while Sen. Kit Bond (R-MO) called for the removal of John Brennan, the White House’s top counterterrorism official.

Last week, Holder wrote a five-page letter to Senate Republican leader Mitch McConnell, defending the administration’s actions. Holder cited numerous incidents in the past in which terrorists had been apprehended, given constitutional rights, and then successfully cultivated as intelligence assets.

Despite what the Republicans claim, authorities can, in fact, obtain intelligence from terror suspects after Miranda rights are given. Moreover, there is a legal provision that could allow them to question terrorists before granting them their Miranda rights. As Holder stated in his letter, there is a public safety exception to the Miranda rule that allows authorities to question a suspect before reading him his Miranda rights if they believe an immediate danger to public safety exists.

Here’s how it works. Authorities on the scene of a terrorist act or attempt can make the determination whether or not a danger to public safety exists. If authorities determine that such a danger exists, as would be the case in almost any terrorist attack or attempted attack, they could invoke the public safety exception to allow them to question the suspect for some time before reading them their Miranda rights. After authorities are satisfied that they have gathered the information necessary to protect against imminent threats, the prisoner can then be given his rights. The suspect can challenge the use of the public safety exception and the length of questioning in a subsequent court hearing, where it would be up to a judge to decide whether use of the exception was justified. In clear-cut cases like Abdulmutallab’s, the exception would almost certainly always be upheld.

The public safety exception to Miranda was used in Abdulmutallab’s case. But in a way, that’s beside the point: Reports indicate that Abdulmutallab continues to give up valuable intelligence even after his rights were read to him. It’s an important point to remember: the public safety exception need not be a precondition to extracting information from suspected terrorists. Questioning after Miranda can take place with the suspect’s attorney present, which obviously can yield good information, as is reportedly the case with Abdulmutallab.

I tire of the notion, so often trumpeted by conservatives, that protecting constitutional rights and protecting national security are diametrically opposed ideas. Holder’s letter points out that even the Bush administration charged over 300 people with terrorism-related charges under the civilian justice system, with all traditional constitutional rights respected. We’ve used existing civilian law to combat terrorism in the past, and there is no reason to discontinue the practice now. America’s principles have endured for more than two centuries. Compromising them now is unnecessary and it will not make us safer.

The views expressed in this piece do not necessarily reflect those of the Progressive Policy Institute.