A Different Kind of Criminal? Miranda, Terror Suspects, and the Public Safety Exception

Abstract

Ten years after the tragic terror attacks of September 11, 2001, the tension between civil liberties and national security-based law enforcement endures. The due process rights of terror suspects are at the pinnacle of this ongoing debate. Two cases in particular pushed the boundaries of constitutional compliance. On December 25, 2009, Umar Farouk Abdulmutallab attempted to detonate an explosive device while on a flight from Amsterdam to Detroit. The “Christmas Day Bomber” was then taken into custody and questioned by FBI agents before being read his Miranda rights. In May 2010, Faisal Shahzad attempted to detonate a car bomb in Times Square and was later questioned by FBI agents for three hours prior to his rights advisement. In light of these cases, Attorney General Eric Holder announced that he would work with Congress to seek new legislation formalizing Miranda’s public safety exception. When these efforts stalled, the FBI issued a memorandum in October 2010 establishing the current policy; terror suspects will not be read Miranda warnings during the first critical hours of custodial interrogation.

This article critically examines the policy to forego providing rights warnings to terror suspects due to public safety concerns. Taking into consideration the tension between the forward looking nature of intelligence gathering, and the post-hoc deterrence and incapacitation goals of criminal punishment, this article concludes that these goals are not irreconcilable. After discussing the merits of both the policy and legal consideration of the current approach to formalizing the public safety exception, this article analyzes proposals aimed at allowing the full use of a terror suspect’s statements to prevent future attacks, and suggest limits to the introduction of those same statements at trial.

Keywords: criminal procedure, Miranda, terrorism, national security, public safety, due process, constitutional