Miranda states that police officers must read suspects their rights before they question them. However, in 1984, the Rehnquist Court ruled that there was an exception whenever public safety or the safety of the officers was involved. There is a compelling public interest in preventing terrorism here. And Slate reports that Attorney General Eric Holder has made extensive use of that provision. But the question is, how far do we go in invoking a compelling public interest?
From Slate, here are two cases in which the Holder administration invoked Quarles:
Then the Christmas Day bomber, Umar Farouk Abdulmutallab, was apprehended in December 2009, before he could blow up a plane bound for Detroit. The FBI invoked the public safety exception and interrogated. When the agents stopped questioning Abdulmutallab after 50 minutes and Mirandized him—after getting what they said was valuable information— Abdulmutallab asked for a lawyer and stopped talking. Republicans in Congress denounced the Obama administration for going soft.In other words, it is clear that this tactic is effective in obtaining information to protect public safety. In other words, the tool is working the way it is supposed to be.
Next came Faisal Shahzad, caught for attempting to bomb Times Square in May 2010. He was interrogated without Miranda warnings via the public safety exception, and again, the FBI said it got useful information. This time, when the suspect was read his rights, he kept talking. But that didn’t stop Sen. John McCain and then Sen. Christopher Bond from railing against Miranda. "We've got to be far less interested in protecting the privacy rights of these terrorists than in collecting information that may lead us to details of broader schemes to carry out attacks in the United States," Bond said. "When we detain terrorism suspects, our top priority should be finding out what intelligence they have that could prevent future attacks and save American lives," McCain said. "Our priority should not be telling them they have a right to remain silent."
But the danger is that carving out such exceptions will clog up the courts with whether or not interrogations were coerced, which, as Justice Marshall notes, was the rule before Miranda:
When Miranda reached this Court, it was undisputed that both the States and the Federal Government were constitutionally prohibited from prosecuting defendants with confessions coerced during custodial interrogations. 5 As a theoretical matter, the law was clear. In practice, however, the courts found it exceedingly difficult to determine whether a given confession had been coerced. Difficulties of proof and subtleties of interrogation technique made it impossible in most cases for the judiciary to decide with confidence whether the defendant had voluntarily confessed his guilt or whether his testimony had been unconstitutionally compelled. Courts around the country were spending countless hours reviewing the facts of individual custodial interrogations. See Note, Developments in the Law - Confessions, 79 Harv. L. Rev. 935 (1966).This case involved the matter of a man who was subdued by police. Without reading him his Miranda rights, they asked him where the gun was since the man allegedly raped a woman and he had a gun. The man pointed to where the loaded gun was. The lower courts threw out his conviction on the grounds that he was not read his Miranda rights. However, the Supreme Court reversed and upheld it.
Miranda dealt with these practical problems. After a detailed examination of police practices and a review of its previous decisions in the area, the Court in Miranda determined that custodial interrogations are inherently coercive. The Court therefore created a constitutional presumption that statements made during custodial interrogations are compelled in violation of the Fifth Amendment and are thus inadmissible in criminal prosecutions. As a result of the Court's decision in Miranda, a statement made during a custodial interrogation may be introduced as proof of a defendant's guilt only if the prosecution demonstrates that the defendant knowingly and intelligently waived his constitutional rights before making the statement. The [467 U.S. 649, 684] now-familiar Miranda warnings offer law enforcement authorities a clear, easily administered device for ensuring that criminal suspects understand their constitutional rights well enough to waive them and to engage in consensual custodial interrogation.
In fashioning its "public-safety" exception to Miranda, the majority makes no attempt to deal with the constitutional presumption established by that case. The majority does not argue that police questioning about issues of public safety is any less coercive than custodial interrogations into other matters. The majority's only contention is that police officers could more easily protect the public if Miranda did not apply to custodial interrogations concerning the public's safety. But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public's safety are less likely to be coercive than other interrogations, the majority cannot endorse the "public-safety" exception and remain faithful to the logic of Miranda v. Arizona.
But Marshall notes that there is a way around this that does not involve jeopardizing public safety:
The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confession. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. Cf. Weatherford v. Bursey, 429 U.S. 545 (1977) (Sixth Amendment violated only if trial affected).In other words, there is no need for a Quarles exception for the FBI to obtain information such as where any other bombs are or whether other people were involved and whether he knows of any other possible terror attacks to this country. The FBI would simply not be allowed to use his responses as evidence against him in court.
And there is a bigger question here. How far are we to go in allowing the government to invoke a compelling public interest? The 8th Amendment reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.The risk of allowing a compelling governmental interest to trump Constitutional rights is that we could find ourselves right back in the Brave New World of George Bush, where he approved the "enhanced interrogation techniques" of alleged terrorists by his own admission in his book "Decision Points." After all, by his logic, the government had a compelling public interest in preventing future terror attacks in the months and years after 9/11; therefore, the need to obtain needed information to prevent such attacks allowed the government to set aside the 8th Amendment.
None of our Constitutional rights are absolute, of course. You can't yell fire in a crowded theater or lie in court or make death threats over the phone. None of these actions constitute Constitutionally protected free speech. But what bothers me most about the FBI not reading Tsarnaev his rights, beyond the obvious risk that he will be acquitted or the charges thrown out, is that there are no limits on defining how far we can go in justifying a compelling governmental or public interest.