Beyond Bin Laden and Lindh: Confessions Law in an Age of Terrorism

Abstract

This paper uses the cases of United States v. Bin Laden and United States v. Lindh to explore the special problems raised by confessions in cases that implicate national security. In the first case, the district court suppressed statements made abroad during the investigation of the 1998 bombings of U.S. embassies in Kenya and Tanzania, holding, in essence, that the suspect should have been given Miranda warnings. In the second case, the suspect's motion to suppress his confession was never heard becuase of a guilty plea, leaving a number of important questions unresolved.

The paper argues that needs of national security compel a foregin interrogation exception to Miranda. Moreover, evolving notions of due process must take into account risks to national security when confessions are challenged under the Due Process Clause. However, truly compelled statements must be suppressed. The paper argues that the Supreme Court's recent emphasis on wrongful, deterrable state action in its due process jurisprudence could lead to the perverse result that a voluntary, unreliabile but un-Mirandized statement taken by U.S. agents would be suppressed in a federal court but a statement extracted by brute force from foregin agents would not be. The paper argues that the Court should reconsider its due process jurisprudence suggesting that reliability plays no role in meeting the demands of due process.

Keywords: Confessions, fifth amendment, Miranda, Bin Laden, Lindh