Codifying The Miranda Terrorist Exception

If you start from the position that Miranda warning were meant for “us” and not “them,” and mix in a healthy dose of terrorism fear with a dash of blind faith in government, then Volokh Conspirator, former federal judge turned lawprof Paul Cassell seems to have done us a favor by clearing up the lingering question : Isn’t it time to codify the exception to Miranda for terrorists?

No need to sweat the details.  Cassell has his exception already laid out.

Because there appears to be some legal uncertainty about whether the public safety exception covers terrorist investigations, it would be useful for Congress to weigh in on the subject and clearly express its view.  Here’s one way a statute covering terrorist investigations could be drafted:

¨“When a law enforcement officer questions any suspect arrested for terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law, a situation involving the public safety shall automatically be deemed to exist and the officer need not provide any advice of rights to the suspect.  Any voluntary statements made by the suspect shall be admissible in any prosecution thereafter brought by the United States or by the District of Columbia.”

From Cassell’s perspective, he’s covered all the bases.  After all, no right-thinking American would question whether terrorists, identified as any person a law enforcement officer arrests for “terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law,” deserve rights.  They’re terrorists, for crying out loud.  We should presume they know what cave Osama’s in, and where the next bomb will explode.  And really, between us Americans, they wouldn’t give us the time of day, so why give it to them?

Cassell’s exception contains two absolutely remarkable things:

1.  It creates an “automatic public safety exception,” meaning that the whole rationale behind New York v. Quarles, dubious to begin with, is tossed out the window.  Call someone a terrorist and get a free interrogation.  No imminent public safety concern?  No problem. 

2.  “Voluntary” statements, sans Miranda, “shall be admissible.”  In this context, it would appear that voluntary refers to statements that do not require a rubber hose.  The Reid Technique, obviously, does not render statements involuntary. 

It’s fairly easy to understand why, from the position of a person inclined to repose absolute trust in the government and to buy into the nonsensical fear mongering that’s been used so effectively to manipulate public opinion, this codification makes infinite sense.  It’s similarly easy to understand why those who are less inclined to turn over the keys to the castle to the G-men would be less enamored with this codification.

This exception begins with the codification of the presumption of guilt.  Arrested?  Close enough.  It then opens a hole big enough to drive a car bomb through, that the person arrested need only be “suspected” of a terrorist crime.  If that’s not enough, the terrorist crime could be one under 18 USC 113B or “comparable state laws,” like terrorist jaywalking.  Don’t laugh.  Notice how the word “terrorist” appears before every alleged “threat” lately?

But what’s striking is that this codification memorializes the failing of “remembering the rubric while forgetting the rationale.”  The public safety exception of Quarles, already a police scam if courts were so inclined, would be automatically disconnected from interrogation.  No issue of public safety at all?  No problem.  Terrorist claim = no Miranda, a simple equation.

The kicker is that the payback for a non-Mirandized arrestee, that the information obtained without benefit of warning, can’t be used in court, either directly or indirectly.  It makes some bit of sense to allow a public safety exception to provide for, you know, public safety, as opposed to obtaining a confession to make a conviction quick and easy.  Now it’s just a matter of quick and easy, no public safety necessary.  Very effective in the war against terrorism.  Not so effective in the war against the evisceration of constitutional rights. 

But hey, they’re terrorists!  They don’t deserve rights.  Everything’s different now.

A comment to Cassell’s post captures the essence of what this is really all about, from our favorite Justice:

I’m reminded of Scalia’s (piquant!) dissent in MD v. Craig:

The State’s interest here is in fact no more and no less than what the State’s interest always is when it seeks to get a class of evidence admitted in criminal proceedings: more convictions of guilty defendants. That is not an unworthy interest, but it should not be dressed up as a humanitarian one.

Let’s get real.  The Constitution, taken with all those nasty rights used to provide viability to its proscriptions, can really get in the way of effective law enforcement.  Without this slavish compulsion to provide rights to bad people, imagine how much safer we could all be.  Don’t you want to be safer?  Don’t you trust law enforcement to do the right thing?  Paul Cassell does.

4 comments on “Codifying The Miranda Terrorist Exception

  1. Brian Gurwitz

    In Dickerson v. US, a surprisingly large 7-2 block of the USSC held that Miranda is a constitutional rule that can’t be superseded legislatively.

    Ergo, a statutory “amendment” would either be unconstitutional or superfluous.

    To the extent Congress wants to “weigh in” as Cassell suggests, why not a non-binding resolution? It would be just as “effective,” and just as big a waste of time, but at least intellectually honest.

  2. SHG

    I agree that Cassell’s codification would be unconstitutional, but the fact that he proposes it is sufficiently outrageous. 

  3. Dave W.

    I was favorably impressed by the criticism of Mr. Cassell’s comment by the commenters at VC. For my own part, I agree with one of the commenters there that the fundamental problem is the role of the exclusionary rule as the primary guardian of Constitutional rights vis a vis the police. The definition of the scope and substance of Constitutional rights is done with the guilty first and foremost in mind, as Mr. Cassell does with the Christmas bomber in his post advocating for cutting back on the scope of Constitutional rights. Bad dynamic that is endlessly perpetuated by the exclusionary rule.

  4. Charlie L

    Cassell, of course, was appointed counsel for the U.S. in Dickerson when the DOJ refused to defend the statute at issue. Overturning Miranda has long been his personal pet project. Having failed miserably in a head-on attack, he’s now turning to backdoor measures, like exceptions that will swallow the rule.

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