The Federal Bureau of Investigation has issued an internal memorandum to guide agents in the interrogation of “terrorists” in advance of providing Miranda warnings, institutionalizing the position of the Obama Administration and reminding all liberal-minded folks of how fortunate they are not to have a reactionary conservative regime in power that doesn’t respect civil liberties.
The New York Times got hold of the memo and published it. It includes these interesting parts:
3. There 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. In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.
The determination whether particular unwarned questions are justified on public safety grounds must always be made on a case-by-case basis based on all the facts and circumstances. In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.
The public safety exception of New York v. Quarles predated the war on terrorism, though it was rarely invoked. It now been elevated, like the terrorist threat level, to a place of prominence.
The obvious and dubious guidance is that agents may choose to questioning despite the absence of any continuing threat where “the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.” The disadvantage is that the questioning may not provide admissible evidence at trial. The memo offers no basis for agents, or the Special Agent in Charge (SAC) to decide to pursue unMirandized questioning after the Quarles exception has terminated.
What makes this notable is the policy favoring agents ignoring Miranda to obtain information rather than to adhere to Miranda warnings. Despite Quarles having been decided in 1984, it has always been the outlier position and issuance of Miranda warnings have always been the norm.
But now that the policy has shifted against Miranda, where will it stop? At Volokh Conspiracy, former federal judge and Utah lawprof Paul Cassell spells out the obvious next question:
The larger interesting question is why should the new policy be limited to suspected terrorists. Presumably FBI agents question many other suspects who pose a threat to the American people. It seems to me that the FBI should use the recognized public safety exception in all circumstances where it is applicable, not just the relatively exotic situations where terrorism is involved.
Bear in mind, this comes from the hand of a former federal judge, presuming that “suspects” pose a threat to “the American people” and thus open the door to invocation of the public safety exception in, well, pretty much any circumstance. This isn’t the first time Cassell has advocated for the use of the public safety exception to trump constitutional protections. Indeed, he’s argued that we shouldn’t rely on something as transitory as a Supreme Court decision, but should codify the exception (and make it the rule rather than the exception) so it’s available to everyone at anytime.
Cassell’s notion that situations involving terrorism are “relatively exotic” strikes me as somewhat quaint. Tack the word terrorism onto any common criminal phrase and, poof, like magic the rules disappear. Terrorist threats? Aren’t the all? Terrorist jay-walking? Why not?
This seems as good a time to recall Nino Scalia’s dissent in Maryland 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.
The F.B.I. memo, aside from coming out of an administration whose audacity at damaging the civil liberties traditionally protected by Democrats Republicans criminal defense lawyers, doesn’t change the rule of Quarles, or the “disadvantage” for ignoring the obligation to provide Miranda warnings. What it does is give permission to ignore the rule and (theoretically) suffer the consequences of inadmissibility. In other words, the government need not comply with the rule of Miranda simply because the Supreme Court says it’s the rule.
That it took a lawprof all of 30 seconds to push for the extension of the exception, the leap onto the slippery slope, doesn’t come as a surprise given Paul Cassell’s leaning toward anything that expedites the public safety at the expense of constitutional rights. But what of the young minds he’s molding in law school?
As Walter Olson notes in Schools of Misrule, though in relation to the dreaded liberal causes, the heads of future leaders are being filled with political crap masquerading as law in order to satisfy the personal agendas of lawprofs. Every student of Paul Cassell’s at the S.J. Quinney College of Law, University of Utah, raise your hand.
While the fear of terrorism that’s been cultivated over the past decade has given rise to broad support of a different set of rules, or no rules at all, in the interest of public safety, the opposite fear that it’s just baby steps away from dissipation of the rules for everyone is hardly overwrought. Just ask Paul Cassell. After all, criminals do pose a threat to public safety, but let’s not try to chalk the dissipation of constitutional rights up as a humanitarian one.
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What? They can’t find a way to spin it as “officer safety”?
Ignoring the rules and accepting the consequences seems like the intellectually honest thing to do. (Especially for a prosecutor, no?) If getting the answer to a question is so important for public safety that the ordinary rules don’t apply, then surely it’s important enough to be worth losing the opportunity to use the answer at trial. Or else it’s not really that important.
(Yet somehow I suspect that if the feds started doing this regularly, there’d be pressure to “close the loophole.”)
Of course, when it comes to the Miranda warnings, this only applies to immediate threats–what? an hour or two?. After that, public safety becomes an argument for getting the suspect a lawyer as soon as possible so you can make a deal to get him talking.
When the government makes the decision as a matter of policy to ignore the rules, regardless of whether it willingly accept the consequences or not, then the concept of a constitutional government is undermined. You’re correct that acceptace of consequences for violation of the rules is intellectually honest (though yet to be seen), but it’s not intellectually honest to eschew the rules in the first place. Adherence to the rules is what one would expect the government to favor as a matter of policy. Once that’s gone, the rest is just a matter of paying the price.
We have a “threats to the life of the nation” exception on human rights which has a similar usefulness for terrorism. I’m surprised it isn’t argued for just about everything on the off chance.
Interesting post and memo. When agents reach the end of any questioning that arguably fits within the public safety exception, and they still want to question, it’ll be interesting to see how they determine when “obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.” Just what are the disadvantages, and how will they actually weigh against the gov’t? If agents question without warnings and are told of physical evidence, that evidence may come in under Patane. If agents get a statement, they may be able to use it to impeach the accused. So where is the disadvantage to the gov’t? Will courts allow the evidence to be used if there is a deliberate violation of Miranda?
This is very reminiscent of a practice called questioning “outside Miranda,” that was common in California in the late 1980s and 1990s. Officers were trained that it was permissible to question suspects after they invoked the right to counsel and to remain silent. The training was that Miranda sets out essentially a non-constitutional evidentiary rule, and officers could legitimately continue to question to get fruits and a statement to use for impeachment. In People v. Peevy, the Calif Supreme Court held that a statement could be used for impeachment even if obtained in deliberate violation of Miranda.
The Calif DOJ stopped training on this practice in the wake of a few decisions, including Dickerson v. US and a civil rights action against cities and officers for engaging in this practice. In 2003, the Cal Sup Ct found a statement to be involuntary where an officer who had been trained to question “outside Miranda” ignored about 6 or 8 invocations and continued to question. The Court castigated the officer for continuing to question, and this decision had an impact.
As for Paul Cassell, darlier in his career, Professor Cassell wrote a number of articles about Miranda, arguing (among other things) that it led to a fall in crime clearance rates. He also participated in litigation challenging Miranda. In Dickerson, Clinton’s DOJ refused to defend the old statute that was aimed at displacing Miranda in federal prosecutions. So the Supreme Court appointed Prof. Cassell to argue the case (as amicus) and defend the statute.
I was totally unaware of the California practice of questioning “outside Miranda,” which is very much the point here, together with the collateral benefits (minus the single disadvantage of being unable to use statements obtained as direct evidence, unless they can spin it to appear within Quarles).
And you’ve hit the point on the head, that this memo informs agents that they can (subject to the slimmest of self-imposed limits) deliberately violate Miranda whenever they decide it’s good for them to do so.
Thanks Chuck.
Thanks Scott.
If you or anyone is curious, the website of Calif Attys for Criminal Justice (the statewide criminal defense bar association) has a summary of the practice of questioning “outside Miranda,” including transcripts of 2 police training videos. The summary was posted in 2003, so it is outdated, but you can really see how officers were trained in the 1990s. [Edit. Note: Link deleted as against rules.]
The training did cease in California. FYI, one of the training videos was quoted in briefs in Missouri v. Seibert, and was cited in the plurality opinion.