Creating an Exception to an Exception-Too Dangerous and Too Unwarranted

JURIST Guest Columnist Amos N. Guiora of the S.J. Quinney College of Law at the University of Utah says that new guidelines regarding questioning terrorism suspects undermine fundamental constitutional protections...
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The Obama Administration just issued new guidelines to allow more extended questioning of terrorism suspects - before giving Miranda warnings. Individuals suspected of domestic terrorism will thus be held for a longer time period than regular criminal suspects, because their alleged crime fits in the magic category of terrorism. At base, these new rules undermine one of the most fundamental constitutional protections of individual rights - the Miranda warning.

The 1966 case of Miranda v Arizona is arguably the seminal case in the constitutional criminal procedure revolution of the Warren Court. Millions of "Law and Order" viewers can recite the Miranda warnings in their sleep: "you have the right to remain silent; anything you say can and will be used against you in a court of law; and you have the right to an attorney and one will be provided to you if you cannot afford one."

In 1984, the Supreme Court in Quarles v New York recognized a public safety exception to Miranda. In cases of a threat to public safety, police officers can question suspects before issuing Miranda warnings in order to respond to that public safety threat. Individual rights and state security - the Miranda warnings and the public safety exception protect the first and recognize the needs of the second.

Fair enough and good enough? Not according to the Obama Administration.

The failed attempted bombings of Northwest Airlines #256, the so-called underwear bomber, and in New York's Times Square offered the first hints of a sea change in the law. In both cases, Attorney General Holder suggested Quarles does not go far enough. In other words, he argued for a significant expansion of the public safety exception. Although the Attorney General is the nation's chief law enforcement officer, his argument was political, not pragmatic. This is critical because law enforcement was not the impetus. Quite the opposite; the push came from the Administration. That is, our first responders, those on the front line of operational counterterrorism, who are first on the scene, had no complaints about their ability to enforce the law and protect the state and the public within the framework of the public safety exception.

It may seem like good politics, but denying Miranda protections to suspected terrorists shows a disturbing willingness to minimize rights for a loosely defined category of individuals in the immediate aftermath of a terrorist attack. Expanding the already established public safety exception to Miranda is fraught with danger. My skepticism draws strength from law enforcement officials who neither advocated nor requested such a measure. That tells me the existing standard is sufficient for lawful and effective domestic counterterrorism. Any expansion beyond that is both unwarranted and dangerous.

Unfortunately, American history is replete with examples of the high-price, innocent individuals have paid for executive branch excess, aided by an acquiescent Congress and a docile Supreme Court. This past highlights the extraordinary dangers inherent in an unwarranted expansion of executive power and the dangers of creating exceptions in the face of a threat, whether real or imagined. The timeless words of the poet and philosopher George Santayana, "Those who cannot remember the past are condemned to repeat it," should be our most poignant guide. Here, it is critical to remember the purpose of Miranda.

There is little doubt that terrorism poses extraordinary dangers. The past decade has been marked by attack after attack against innocent people worldwide, unjustifiably and criminally defined as "legitimate targets" by terrorists. Even in the face of this conduct, the core principles of both Miranda and Quarles are clear, and maintain their importance, with respect to terrorism.

In providing greater protections to individuals subject to police interrogation, Chief Justice Warren clearly looked back into the dark pages of interrogations in the U.S. Extraordinarily clear and powerful, his words remind us of the values endangered by denying Miranda protections to suspected terrorists. They remind us of the extraordinary, and unforgivable, price paid by untold numbers of people historically subjected to methods ranging from the third degree to the unconscionable. Chief Justice Warren's words were a clarion call to state agents that the rule of law demands protection for suspects, no matter what the alleged crime or who they are.

The criminal procedure revolution does not limit law enforcement's ability to detain for either interrogation or on the scene crime prevention. The criminal procedure revolution does impose on law enforcement the obligation to inform the suspect of the right to representation by counsel during interrogation and the right to remain silent. As the language of Miranda makes abundantly clear, creating, and protecting, both rights is essential.

Effective counterterrorism neither demands, nor warrants, broader exceptions to the balance between the needs of law enforcement and the rights of individuals. Expanding the public safety exception beyond Quarles unnecessarily chips away at Miranda and undoes this vital balance. While politics is understandable, an unwarranted exception is just that - unwarranted.

Amos N. Guiora is Professor of Law at SJ Quinney College of Law, the University of Utah; his latest article is: Relearning Lessons of History: Miranda and Counterterrorism.

Suggested citation: Amos N. Guiora, Creating an Exception to an Exception-Too Dangerous and Too Unwarranted, JURIST - Forum,
April 2,2011, http://jurist.org/forum/2011/April/article_url.php.

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