On September 8th, NPR reported:
After seizing terror suspect Abu Anas al-Libi in the Libyan capital, Tripoli, U.S. forces took him to a ship in the Mediterranean where he could be interrogated for weeks or even months to come. Why a ship? In short, this allows the U.S. to hold and question al-Libi about his alleged role in a pair of 1998 U.S. Embassy bombings in Africa without putting him in the U.S. civilian court system, which could limit or halt efforts to interrogate him. These “interrogations at sea” are part of the ongoing legal battles over how the U.S. should deal with terror suspects in the post-9/11 world.
Of course, the consequence of placing him in the “civilian court system” is really a reference to the Miranda warning and waiver requirement. It is true that the government might have some flexibility to question al-Libi without first advising him of his Miranda rights pursuant to the Public Safety Exception (PSE) to the Miranda requirement – an exception established to permit unwarned questioning in response to a threat of imminent danger to police or the public. However, uncertainty as to the scope of unwarned interrogation authority pursuant to that exception indicates that the military detention and interrogation option – an option free from the constraints of Miranda – obviously is appealing in cases such as this.
This military incapacitation option for terrorist suspects has fundamentally altered the equation at the core of the PSE. Because the government may now use this option to avoid the impact of Miranda altogether, it actually shifts the balance of risk associated with a narrow application of the PSE to the terror suspect, and not the government. As a result, expanding the scope of the PSE to facilitate effective questioning of such suspects will ironically accrue to their ultimate interest. This is because it will incentivize the Article III disposition option by eliminating a key advantage of the military disposition option: the ability to use the fruits of unwarned interrogation as evidence against the suspect in a subsequent trial.
This is the thesis I advance with my co-author, Professor Christopher Jenks, in an article forthcoming in the Fordham Urban Law Journal titled, Strange Bedfellows:
How Expanding the Public Safety Exception to Miranda Benefits Counterterrorism Suspects (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2337514). We argue this military disposition option – an option that could conceivably even be used for U.S. citizens – fundamentally alters the PSE equation. Here is the abstract:
When should a suspected terrorist receive Miranda warnings, and should confessions obtained without obtaining a waiver of the Miranda right to silence and assistance of counsel be admissible at trial? The answer to this question turns on the scope of what is known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement. Established by the Supreme Court in 1984 in New York v. Quarles, the exception allows the use of confessions obtained from suspects questioned after being placed in custody (the situation that triggers the Miranda warning and waiver requirement) when the questions respond to an imminent threat of danger to the officer or the public. Implicit in the rationale for the PSE is that failing to advise a suspect questioned in a custodial setting of his or her Miranda rights may result in the government’s foregoing the opportunity to incapacitate the individual. The Quarles Court adopted an exception that eliminated the requirement that officers responding in such situations choose between protecting themselves and the public or risk the inadmissibility of potentially vital evidence: the suspect’s voluntary confession. This Article questions whether this binary choice is still valid. More specifically, it asserts that when dealing with a terror suspect, the alternative “remedies” of indefinite detention and trial by military commission fundamentally alter this equation. This alternative option for incapacitating a suspected terrorist operative may, in certain situations (potentially even involving a U.S. citizen), eliminate the binary ‘warn and risk imminent danger, or don’t warn and risk the ability to prosecute’ choice equation that was central to the Quarles decision.
As a result, the burden of risk associated with a narrow application of the PSE has substantially shifted to the terrorism suspect, because the military detention option allows the government to question in violation of the Miranda warning and waiver requirement without risking the ability to incapacitate the suspect, even if the confession is inadmissible in an Article III court. Accordingly, this Article argues that expanding the scope of the PSE to allow for more extensive interrogation of terrorism suspects will inure to the suspects’ benefit by incentivizing the normal law enforcement disposition for suspected terrorist suspects, and thereby mitigating the likelihood that such suspects will be subjected to military administrative detention.
Geoffrey S. Corn is a Professor of Law and Presidential Research Professor at the South Texas College of Law where he teaches National Security Law, The Law of Armed Conflict, Criminal Law, Criminal Procedure, Comparative Terrorism Law, International Law, Ethics for Prosecutors, and Military Law for Civilian Practitioners.