Introduction I. Miranda, Public Safety, and the Terrorism Interrogation Dilemma II. Miranda and Quarles. Why Public Safety Does Not Always Mean Protecting the Public III. The Indefinite Detention/Military Commission Alternative A. Authorization for Use of Military Force B. National Defense Authorization Act [section] 1021 IV. Reconciling an Expanded Quarles Exception with Miranda A. The Evolution of the Miranda Rule: Focusing on the Core Concern of the Risk of Police Calculation B. Other Indicators of the Valid Influence of the Terrorism Threat: The Special Needs Doctrine Analogy V. Tailoring a Terrorism Expansion of Public Safety to a Narrow Range of Cases Where the Confession Is Case Dispositive VI. How Expanding the Quarles Exception Is a Net Gain for Terror Suspects: Incentivizing the Article III Prosecution Option Conclusion
The last thing we may want to do is read Boston [Marathon bombing] suspect Miranda Rights telling him to "remain silent.' ... It captured, I hope [the] Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes. (1)
[The Boston Marathon Bombing] is Exhibit A of why the homeland is the battlefield. (2)
The Boston Marathon bombing, along with the prior "shoe" (3) "underwear" (4) and "Times Square" (5) bombers, has prompted debate (6) on the applicability of traditional criminal procedure principles to counterterrorism investigations and prosecutions. Much of the discussion focuses on the efficacy and even appropriateness of applying the public safety exception to the Miranda rights warning requirement. What is missing is underscored by Senator Graham's comments--the possibility of indefinite detention and trial by military commission fundamentally alters the implicit balance within the public safety exception.
In New York v. Quarles, the Supreme Court created what has come to be known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement: when a police questions a suspect in custody in response to an imminent threat of danger to the officer or the public, the confession will be admissible even if the officer failed to provide Miranda warnings and obtained a waiver. (7) In her opinion in Quarles, concurring in part and dissenting in part, Justice O'Connor reminds us that Miranda does not prohibit public safety questioning; Miranda simply restricts using the statement as evidence. (8) In essence, Miranda requires the government to make a choice--question a suspect without first advising them of the Miranda rights and obtaining a waiver of those rights in order to protect the public, or advise the subject and seek a waiver to protect a future prosecution. This Article challenges whether that choice remains valid.
Implicit in that formulation is that failing to advise a suspect questioned in a custodial setting of their Miranda rights may result in the government foregoing the opportunity to incapacitate the individual. (9) This Article posits that the alternative "remedies" of indefinite detention and trial by military commission fundamentally alter the equation Justice O'Connor laid out in Quarles. This alternative option for incapacitating a suspected terrorist operative may, in certain situations (potentially even involving a U.S. citizen), eliminate the binary "warn and risk imminent danger, or don't warn and risk the ability to prosecute" choice equation that was central to the Quarles decision.
Instead, the burden of risk associated with counter-terrorism questioning has substantially shifted to the terrorism suspect. Unlike the response options available to government law enforcement and prosecution agents prior to September 11, 2001, the government does not necessarily risk the ability to successfully prosecute (due to inadmissibility of the confession)--and thereby incapacitate--the terrorist suspect if a violation of Miranda results in inadmissibility of the suspect's confession. …