Tuesday, May 11, 2010

A Liberal Who's Been Mugged

By Mike Dorf


That's the punch-line to one half of an old joke:


Q: What's a liberal?

A: A conservative who's been indicted.


Q: What's a conservative?


A: A liberal who's been mugged.


In announcing that the Obama Administration will seek to expand its authority to interrogate suspects without reading them their Miranda rights, AG Holder has left my head spinning.  We now have both Senator McCain and President Obama for limiting Miranda, while Glenn Beck (GLENN BECK!!) on the other side.  says of Faisal Shahzad: "He’s a citizen of the United States, so I say we uphold the laws and the Constitution on citizens . . . .  He has all the rights under the Constitution. We don’t shred the Constitution when it’s popular."


This bizarre turn of events would at least make political sense if Shahzad had been giving the FBI actionable intelligence but then clammed up as soon as he was read his Miranda rights.  But there's no indication whatsoever that this happened in Shahzad's case or in any other case.  The mugging of Holder and Obama was accomplished not by terrorists but by other politicians, vying for the political space to their right on terrorism.  Explaining the administration's shift, Holder said on NBC: "We’re now dealing with international terrorists . . . and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face."


What does he mean, "now?"  In the wake of the Shahzad case we now know that the Pakistani Taliban are attempting to attack U.S. targets, but why does the addition of one group to the roster of enemies change the calculus so dramatically?  Or to put the point more, well, pointedly: If Holder and Obama didn't think that 9/11 justified departing from Miranda, why does the addition to the calculus of a failed car bombing in Times Square change that conclusion?


Meanwhile, it's worth considering the doctrine.  The Administration seeks authority to interrogate detainees under the "public safety" exception to Miranda first recognized in New York v. Quarles.  There, the Court allowed into evidence a statement ("the gun is over there") and a gun that were the product of an unMirandized question ("Where is the gun?") asked by the police right after arresting a suspect in circumstances in which a loaded gun posed an ongoing threat.  The exception in Quarles was for a period of seconds.  The Obama Administration would like to see it expanded to cover unMirandized interrogations that last for hours.


Such an expansion of the public safety exception could not possibly be justified on the ground that there isn't time to read the warnings.  Rather, the argument would have to be that reading the warnings might deter the gathering of actionable intelligence.  That sort of argument is not ruled out by Quarles, where the Court said: "if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles' position might well be deterred from responding. "  So the Quarles Court was worried that the warnings might dissuade a suspect from talking.  However, it's not clear that the Quarles Court thought that even this concern would justify any form of prolonged interrogation.  The very next paragraph talks about the decisions police must make "in a matter of seconds."  It's hard to see how that becomes hours.


Of course, any change in Miranda would be subject to challenge in the courts.  Having held in 2000 that Miranda can't simply be repealed by ordinary legislation, the SCOTUS would ask whether a dramatic expansion of the public-safety exception is needed.  Here the answer is almost certainly no.  As Yale Kamisar summarized the evidence a few years ago, except for longtime Miranda critic (and former federal judge) Paul Cassell, "there is wide agreement that Miranda has had a negligible impact on the confession rate."  One would hope that in considering whether to expand the public safety exception, the Court would demand substantial evidence that things are different with respect to terrorism suspects.


Finally, there is an alternative way for the government to evade Miranda: persons legitimately held in military custody are not entitled to the protections of the criminal justice system.  A lawful enemy combatant cannot be interrogated at all (beyond name, rank and serial number), but that prohibition does not block humane interrogation of unlawful enemy combatants, as bomb planters would certainly be classified.  Taking this route would have serious consequences, though.  First, evidence obtained as a result of non-Mirandized interrogations could not later be introduced in a civilian criminal trial, which would obligate the government to try the suspect before a military tribunal or not at all.  Second, the key word above is "legitimately."  Although the Hamdi case upheld the power of the government to subject a U.S. citizen to military jurisdiction, it did not define the outer bounds of that power.  Would the government be able to subject any U.S. citizen to military jurisdiction simply on the ground that he is charged with an offense denominated an act of terrorism?  I don't read Hamdi as going that far, but the Court never reached the merits in the case that came closest to presenting it, Padilla.


Bottom Line: The Obama Administration may prove to be as good at generating constitutional law exam questions as its predecessor.

21 comments:

Jonathan said...

I'd always heard that a conservative was a liberal who had been mugged, but it's a libertarian who is a conservative who's been indicted.

Jonathan H. Adler

Prup (aka Jim Benton) said...

And a liberal is a libertarian caught in a bridge collapse.

Michael C. Dorf said...

Jonathan: I'm nearly certain it's "liberal," not "libertarian," because the expression long pre-dates the rise of libertarianism as a viewpoint distinct from liberalism. The expression is sometimes rendered "a conservative who has been arrested" rather than indicted, but that's a different point.

Sam Rickless said...

Mike, I completely agree with everything you say. Wise and instructive as usual.

Here is another difference between Quarles and Shahzad. In Quarles, there is clear and present evidence of immediate danger to police officers and innocent bystanders at the time of questioning in the form of a ditched gun. In Shahzad, the bomb was defused many hours before Shahzad was apprehended. At the time Shahzad was questioned, there was no particular reason to believe that any innocent person was in immediate danger. Indeed, given that the most effective way to spread terror with multiple bombs is to have the bombs go off (roughly) at the same time [this is because once it becomes known that one bomb has gone off, the terror alert level is raised and it is therefore more likely that other bombs will be found and defused, or more likely that places of interest will be evacuated], at the time of his arrest the probability that Shahzad possessed intelligence that would enable law enforcement to prevent another imminent attack was low. There was ample time to Mirandize him. To me this case is really no different from the case of Timothy McVeigh, who was (I believe) Mirandized when he was arrested for planting a bomb at the Murrah Building in Oklahoma City.

Neil H. Buchanan said...

I would give the benefit of the doubt to anyone other than Glenn Beck, but it is notable that he couldn't even make his (surprisingly admirable) point without getting it backward: "We don’t shred the Constitution when it’s popular." Of course we don't shred it when it's popular! No one wants to -- because it's popular. It's when it's unpopular that we need to be vigilant. Again, maybe just a slip of the tongue, but he has no record of good faith and fair dealing on which to rely.

Neil H. Buchanan said...

All right, I will give him the benefit of the doubt. Beck said: "We don’t shred the Constitution when it’s popular." If that is supposed to mean, "We don’t shred the Constitution when it’s popular to do so," then that's a coherent point. My head is obviously spinning faster than Mike's because of this.

Craig J. Albert said...
This comment has been removed by the author.
Craig J. Albert said...

And all the while I thought it was "librarian". Silly me.

But on to the main point. The public discussion of this issue seems to assume that "Mirandizing" a suspect is sort of like sprinkling him with magic pixie dust. When it happens, the suspect immediately shuts up (having just learned of his right to remain silent, and now smugly bathing in the glow of that right), frustrating the efforts of the police who want to interrogate him. From what's been leaked about the Shahzad case, we know that that hasn't happened. Instead, what happened was what happens when Detective Stabler interviews a perp. He reads his rights and then tells explains that if he lawyers up, he's probably going to lose his only chance to make a good deal. Lots of times they talk, just like in this case. And there's a good reason for why you might want a clean arrest in the Shahzad case, with the ability to offer a nice concession: Shahzad can tell his interrogators where he went to Taliban camp and how to find the Taliban camp. This is important information, it will save a lot of lives, and maybe Shahzad really is some poor shnook who lost his job, lost his house, and then got mad at the world.

Now I ask a serious question: is the policy debate over whether we should create a means of compelled self-incrimination, or is it a debate over whether suspects should have the right, but not be told of it? If the latter, then our debate focuses on the small universe of accused criminals who haven't watched an episode of American TV in the last 35 years; if the former, then we need to ask ourselves how this is to be implemented. I'll jump back in when I get an answer.

Russell said...

Professor:

While I entirely agree that this is a solution in search of a problem, it seems there is an additional alternative short of "military interrogation." Just don't give the warnings. The resulting admissions won't be admissible (at least against that defendant), but if the intelligence is sufficiently valuable (e.g. "where is the training camp?") and it truly seems like the suspect would clam up if warned, it should still be worthwhile to the government.

And in the case of Shahzad (and others), it's not as if they actually need the admissions to get a conviction. There was already more than enough other circumstantial evidence...

Michael C. Dorf said...

Russell: You are right that not giving the warnings would satisfy the objection to Mirandizing in the sense of giving warnings (by definition). That precise point was made by Justice Marshall in dissent in Quarles. But I think the objection is to the part of Miranda that forbids further interrogation after a suspect has indicated he doesn't want to talk or wants a lawyer. At that point, the authorities could still ask questions without any adverse consequences other than suppression of any resulting statement. What they could not do--because it violates not only Miranda but the prior law too--is apply pressure that is itself a due process violation. Which is why it's particularly disturbing that McCain--who has been on the anti side of the "enhanced interrogation" debate--is for limiting Miranda here.

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