The Obama Administration's New Approach to Miranda in Terrorism Cases

Rick Pildes

Last May, I raised the suggestion in a series of posts on this blog thatthe administration and Congress might consider codifying thepublic-safety exception to the Miranda rules to clarify how thatexception should apply to those arrested on terrorism-related charges.The aim is to avoid conflicts between legitimate intelligenceinterrogation and effective criminal prosecution; if there are sensibleways not to have to trade off one of these important goals for theother, we ought to consider such options. I also suggested thatlegislation of this sort would be a preferable alternative tolegislative proposals that would address the intelligence investigationconcerns by simply putting all such suspects into military custody anddetention. Soon after that, the Attorney General testified beforeCongress and raised this idea of a legislative approach to Miranda, butCongress did not respond.

I therefore wanted to note that today's Wall Street Journalreports that the FBI has created an administrative process that doesmuch the same thing legislation on this issue would have done.According to the WSJ, which has reviewed a copy of the non-public memo,the new policy applies only in "exceptional cases" where investigators"conclude that continued unwarned interrogation is necessary to collectvaluable and timely intelligence not related to any immediate threat."The memo also sets up a process that must be surmounted before thispower can be used: Department of Justice lawyers and FBI supervisorsmust give prior approval in the specific case.

The top Democraton the House Intelligence Committee notes, probably correctly, that thecourts would be more likely to accept this kind of clarification ofMiranda if it rested on legislation, rather than just administrativeaction (that doesn't mean courts would not accept the new FBI practice,only that they'd be more likely to with congressional backing). As Isaid in those earlier posts, I am in no position to know whether thefacts on the ground indicate that there is a need to relax Miranda inthese ways to enable effective intelligence interrogation; if I weremaking policy on these issues, I would want to hear from those whoconduct these interrogations, from the FBI and other agencies, as wellas others. But law is often about trying to accommodate competingvalues, including adapting prior law to changing circumstances, and Iam interested in the question of principle: if there is a legitimateintelligence-gathering need, should Miranda be modified in this way?

Here'sone way to test intuitions about this: suppose we could be confidentthat the interrogations would be lawfully conducted (ie, no unlawfullycoercive techniques). There are clever institutional structures one canimagine to help ensure that: the interrogations could be videotaped, ora neutral third-party observer (say, a retired federal judge or others)could observe the interrogation from behind a one-way window. For thosetroubled by the new FBI policies, would there be any objection in thesecircumstances? In other words, if we can find ways to preserve thevalues and functions Miranda seeks to realize, while also reducing thetension between criminal law enforcement and intelligence gatheringfunctions, is there some remaining powerful reason to resist these newFBI policies?

Posted 9:41 AM by Rick Pildes [link]