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 that the administration and Congress might consider codifying the public-safety exception to the Miranda rules to clarify how that exception should apply to those arrested on terrorism-related charges. The aim is to avoid conflicts between legitimate intelligence interrogation and effective criminal prosecution; if there are sensible ways not to have to trade off one of these important goals for the other, we ought to consider such options. I also suggested that legislation of this sort would be a preferable alternative to legislative proposals that would address the intelligence investigation concerns by simply putting all such suspects into military custody and detention. Soon after that, the Attorney General testified before Congress and raised this idea of a legislative approach to Miranda, but Congress did not respond.

I therefore wanted to note that today's Wall Street Journal reports that the FBI has created an administrative process that does much 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 collect valuable and timely intelligence not related to any immediate threat." The memo also sets up a process that must be surmounted before this power can be used: Department of Justice lawyers and FBI supervisors must give prior approval in the specific case.

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

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

Posted 9:41 AM by Rick Pildes [link]