Tuesday, April 23, 2013

Another Way to Read the FBI Memo Re Public Safety

By Mike Dorf

In my first post yesterday I said that the 2010 FBI memo argued that in terrorism cases the "public safety" exception to Miranda may be broader than in regular criminal cases.  I then went on to note how some of the factors at play in the regular public safety case suggest a narrower, not broader, public safety exception.  In response to my post, I received a couple of suggestions from readers that I was misreading the FBI memo  in its initial step and, upon reflection, I think these readers are probably right.  That reassessment does not relate to most of what I wrote yesterday but in the interest of completeness, I thought it worth elaborating the point here.

Recall that the "money quote" I included in my blog post went like this:
There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.
Here's the alternative reading: The FBI was advising its agents that in exceptional cases they should continue to interrogate suspects without Mirandizing them, even though any statements thereby obtained would be outside of the public safety exception and therefore inadmissible in any eventual criminal trial of the suspect.  Non-specialists might think that such further questioning would be unconstitutional under Miranda but that's  not true.  A footnote in the relevant paragraph of the FBI memo cites a line of Supreme Court cases that says that failure to Mirandize does not result in a Fifth Amendment violation unless and until the government introduces the resulting statements at trial.  Accordingly, it appears that the FBI memo was saying that in exceptional cases, the government should bear the cost of "proceeding with unwarned interrogation" in the sense that it should forgo the possibility of using any statements produced as evidence at trial--instead using those statements to foil other plots or apprehend other suspects.

Of course, there are limits beyond which the FBI cannot go, nothwithstanding the foregoing analysis.  Coercive interrogation that "shocks the conscience" would be a substantive due process violation at the moment it occurs, regardless of whether or not the government later attempts to use any resulting evidence at trial.  I certainly don't read the FBI memo as advocating anything of that nature, however.