An Unnecessary Rule: FBI Memo on Mirandizing Terror Suspects is a Waste of Paper

So on Thursday the WSJ reported that the Obama administration has changed the rules of investigating terror suspects, to permit interrogation without Miranda warnings in certain circumstances:

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

We made a few notes, hoping to get a minute to blog on the issue.  It just struck us as a stupid and unnecessary thing to do, if prevention of terrorist acts is the goal.  Miranda is just a protection affecting evidence that can be used at the trial of the person being interrogated.  That has to do with evidence of past crimes; it’s irrelevant to the prevention of future acts.  And if the goal is to gather evidence for a criminal trial, then it’s just unconstitutional.  It’s stupid no matter which way you look at it.  But our current never-ending trial is demanding pretty much every waking moment, and nothing got written.

Then yesterday the NYT published the text of the October 2010 FBI memo.  The relevant paragraph provides that:

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. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

At the words “prompt presentment,” we (figuratively) slapped our forehead.  It all came back to us.  In May 2010, when the Obama administration first floated the idea, we’d already written about how stupid and unnecessary it was.  No wonder we knew what to think about it on Thursday — we’d already thought about it.

With any luck this trial will end in a week or two, and we’ll get back to a semi-regular blogging routine.  In the meantime, we’re going to cheat a bit and just cut-and-paste what we wrote last May.  It’s probably on point, and our thinking probably hasn’t changed much since then.  Here you go:


The Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because they’ve been read their rights. Either someone’s going to talk, or they aren’t. Whether or not the police Mirandized them first has zero effect on whether someone’s going to answer police questions.

This is another instance of where the real world differs wildly from what you see on TV. On TV, when someone gets arrested, the cops recite the litany “you have the right to remain silent,” etc. In real life, at least here in NYC, that never ever happens. The first time someone gets Mirandized, if ever, is after they’re taken back to the precinct and it’s been determined that they’re going to confess. Cops are trained not to Mirandize people, in the unfounded belief that people clam up afterwards. As a result, they lose out on a lot of statements they actually could have used.

The person who clams up after being read his rights, or demands a lawyer, would have done so regardless. They already knew the magic words, and so they said them. For those who might have talked anyway, being read their rights actually makes them more likely to do so. They may not know the significance of theMiranda warnings, but by God they know they’re supposed to be read their rights, and once that happens it’s actually satisfying and in a way relaxing. Things are as they should be. Whatever they’re thinking, nobody suddenly thinks “oh my God, I’d better shut up now” once they’re read their rights. Doesn’t happen.

So it’s a rare instance of where real life ought to be more like TV. If, immediately on arrest, the cops said the magic litany, they’d be able to gather so many more confessions and statements that they’d be able to use at trial. There would be more evidence, not less. This is no less true in the case of terrorist subjects than anyone else. The Times Square suspect seems to be a typical case, still talking happily long after being Mirandized.

This leads to the second point: There is no reason to Mirandize someone if you’re not going to use the statements at trial in the first place. Nothing prevents the gathering of intelligence for national security purposes when that intel is not going to be used at the trial of the guy who’s spilling the beans. Miranda doesn’t preclude the gathering of intelligence, it only precludes using stuff at trial.

So seriously, if the administration wants actionable intelligence they can use to hunt down terrorists in Pakistan, the Miranda rule is not stopping them. You want to find out who controlled the terrorist, who the other members of his cell were, where the money came from, who supplied the training and equipment, then go to it. You don’t need it for trial, all you need is the evidence of the crime. Hell, you don’t need his confession at all. Just proceed with the criminal case as if the guy had never confessed. Use his statements to prevent future attacks and build investigations against other people (who won’t have standing to object) and try him with all the other evidence you got.


What is the purpose of the Miranda rule, after all? It’s the same as the reason for the Fifth Amendment right against custodial self-incrimination. The only reason is to make sure the state doesn’t use its awesome power to override the free will of the individual, and force him to incriminate himself out of his own mouth.

If nobody’s forcing you to incriminate yourself, the law doesn’t care. It was your own free will, stupid as it may have been. But if you really do not want to say the words that will result in your punishment, then the state cannot extract those words by fear or intimidation or pain.

And when you’re in custody, you’re in an inherently intimidating situation. So the asking of any questions by the police when you’re in custody — or even raising an eyebrow or doing anything else likely to get an incriminating response — is unfairly taking advantage of the might of the state to force you to say the words against your will. Conceptually, it’s no different from Star Chamber or the Inquisition, and it’s what Americans have been dead set against from the get-go.

But note that this is the only thing we’re concerned with here. There’s no self-incrimination issue if your DNA is sampled for comparison to the DNA found at the scene, even if it convicts you. You weren’t actively convicting yourself, your free will was not involved, even if you objected to the DNA sampling itself. You weren’t providing facts out of your own mouth that you didn’t want to say. It’s not a Miranda issue.

And if someone else made statements that resulted in your conviction, it’s not an issue either. It wasn’t your free will being overridden, so you don’t get to complain about it, and you don’t get to have his statements suppressed. They can be used against you just fine (except of course for Bruton and other issues that aren’t really the point here).

So none of this is really the concern here when interrogating suspected terrorists. The point is not so much to gather evidence to use at trial — law enforcement already has it, or else they wouldn’t be interrogating the guy now. But there’s zero harm in simply reading the guy his right the instant he’s arrested, so when hedoes talk you can use it. Because he’s not going to decide not to talk just because you read him his rights.

We’re on the record already saying the Administration’s foolish for focusing on civilian criminal justice in dealing with foreign terrorists. But even if we agreed with that policy, we’d still have to conclude that they’re being extra-foolish here. It’s a bad idea.

Finally, don’t forget about all those unintended consequences that seem to happen more often than not. The Obama administration could wind up eroding theMiranda rule dramatically, by creating a precedent for carved-out exceptions via the Legislative branch. Something tells us that vote-hungry congressmen, always eager to look tough on crime, would jump at the precedent to take away even more of our Constitutional protections. It always seems like this happens most often as the result of good-intentioned administrations who ignore common sense in their rush to do “the right thing.”

So, like we said, this is just stupid. Holder’s wrong. Terrorism is no reason to relax Miranda.


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6 Responses

  1. James (from Facebook) says:

    So what you are basically saying is that in order to compensate for a previous stupid decision by the Obama Administration they are attempting to make another that will potentially have long term negative implications for Americans, not terrorists.

  2. Trevor Reid says:

    This seems correct as far as Miranda and the real world in the context of criminal prosecution–but the larger problem is that the mere exclusion of evidence does not protect the full extent of individual rights contemplated by the Fourth, Fifth, and Sixth Amendments.

    We’re supposed to be free from all unreasonable searches and seizures, all compelled self incrimination–all of ’em; not only the instances where the police are trying to make a good case, but also those when they seek to harass, pressure, look busy, be noticed, steal, intimidate, or pass time.

    The exclusionary rule is ass backward. Even illegally obtained, yet otherwise reliable evidence should be admitted if it sheds light on the truth. Likewise, authorities should be punished for obtaining illegal evidence whether it’s used at trial or not.

    • Nathan says:

      I’m not sure I agree that police should be punished simply for crossing the line in getting evidence. Where the line happens to be is different from case to case, and is usually only detectable with 20/20 hindsight at a suppression hearing (presupposing that the cops bother to testify truthfully or accurately). If the police could be liable for errors, they’re not going to go anywhere near the line. They’re going to avoid conduct that could have resulted in lawfully obtained evidence, in an attempt to steer well clear of the line. Society would lose the benefit of that otherwise lawfully-obtained evidence.

      The exclusionary rule is actually an elegant solution to the problem. The police are allowed to go right up to the line. If they happen to cross the line, we only take away that evidence which they shouldn’t have gotten in the first place. There is no disincentive to collecting as much evidence as the law allows.

      The problem is the continual dilution of the rights protected by this exclusionary rule. There are dozens of exceptions to these fairly basic rights. They’re all well-intended variations on the theme of “we’re not going to penalize the cops for trying to do the right thing.” In practice, however, they serve as excuses that cops and prosecutors can use to justify bad searches after the fact. And there are enough of them that it’s pretty hard to come up with a situation where one or more wouldn’t apply.

      None of this is relevant, however, when the authorities are not investigating a past crime, but are instead trying to prevent a future attack. They’re not gathering evidence for use in a criminal prosecution, but are instead gathering intelligence to stop an act from taking place. The 4th/5th/6th amendments and the exclusionary rule don’t enter into it. At all.

  1. September 3, 2011

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    […]An Unnecessary Rule: FBI Memo on Mirandizing Terror Suspects is a Waste of Paper – The Criminal Lawyer – Commentary on Law and Policy[…]…

  2. June 13, 2012

    […] to time on this blog.  For good reason — he’s been something of an idiot on profiling, miranda, terrorism, etc..  But today he did something praiseworthy, and we’d be out of line if we […]

  3. April 22, 2013

    […] On top of that, the Obama administration wanted Congress to specifically pass legislation allowing longer interrogations before Miranda need be invoked. (A brilliant writer blogged about that memo a couple of years ago, concluding that it was “An Unnecessary Rule.”) […]

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