And if a terror suspect decides to remain silent after being warned, does that increase the likelihood a confederate will launch another attack, leaving rubble and body parts on the streets of a U.S. city?
After taking considerable heat for Mirandizing two recent terror suspects, the Obama administration says it is taking a look at the "public safety exception" to Miranda vs. Arizona, an exception articulated by the U.S. Supreme Court in 1984.
Under Miranda, interrogators are supposed to immediately stop questioning a suspect who asks for a lawyer until a lawyer is present. Any information gathered between the time a suspect asks for the lawyer and the time a lawyer arrives is inadmissible in court.
But the inadmissible information may be essential to discovering whether a suspect acted alone or whether the suspect knows of future planned attacks.
In other words, strictly following Miranda puts U.S. officials in a bind: Failing to question a suspect without a lawyer may put the public in danger; failing to wait for a lawyer to interrogate could put a conviction in jeopardy.
Two recent terror defendants were advised of their Miranda rights but decided to cooperate with U.S. investigators anyway, officials say. Their cases are distinct from that of Khalid Sheik Mohammed, the purported self-confessed mastermind of the Sept. 11, 2001, attacks that left nearly 3,000 dead in New York and Washington, and others in U.S. custody.
When Sheik Mohammed was first captured in Pakistan in 2003, reports said he began talking without the application of harsh interrogation techniques. Since then, CIA sources and Sheik Mohammed himself have told the media he was subjected repeatedly to waterboarding and other techniques, and gave up significant information only after that pressure.
Waterboarding involves strapping a prisoner to a board, elevating his feet and wrapping his face in cellophane before repeatedly pouring buckets of water on his face, inevitably convincing the prisoner he is drowning. In 2005, CIA sources told ABC News Sheik Mohammed was able to endure waterboarding for 2 1/2 minutes before "begging to confess." When CIA officials tried the technique on each other as an experiment, the average time before breakdown was 14 seconds.
What effect the treatment will have on Sheik Mohammed's upcoming trial before a federal judge in the United States is anybody's guess.
The two terror defendants recently captured in the United States have received markedly different treatment.
Umar Farouk Abdulmutallab, a Nigerian national, was arrested Christmas Day aboard Northwest Airlines flight 253 as it neared Detroit en route from Amsterdam, Netherlands. He was severely burned by explosives hidden in his underpants that exploded without damaging the aircraft.
Given top-flight medical treatment, Abdulmutallab was advised of his rights shortly after he began talking, and clammed up. But CNN and others said he changed his mind and has begun cooperating with investigators on a daily basis.
Faisal Shahzad, a naturalized U.S. citizen from Pakistan, is accused of trying to detonate a car bomb in New York's Times Square May 1, and was arrested as he tried to flee to Dubai.
After allegedly confessing to the attempt, Shahzad was Mirandized but has been cooperating with authorities anyway, officials say.
Despite the alleged cooperation from both suspects, U.S. Attorney General Eric Holder Jr. hinted last Sunday the administration is backing away from its insistence that terror suspects be told of their rights to preserve the chances of convicting them.
Asked on ABC's "This Week" whether Miranda gives enough "flexibility" to deal with terror suspects, Holder said: "Well, that's one of the things that we're looking at. I think we have to first say that the system that we have in place has proven to be effective. ... People have been given Miranda warnings. People have continued to talk, as was the (Shahzad) case here, as was the case with Abdulmutallab in Detroit."
But Holder said the administration is looking at "whether we have a system that can deal with the situation that agents now confront. The public safety exception comes from a case called Quarles," the 1984 Supreme Court ruling creating the public safety exception.
The attorney general said the administration may ask Congress for a new law on the treatment of terror suspects "that is ... constitutional, but that is also relevant to our time and the threat that we now face ... to make sure that we are as effective as we can be, that agents are clear in what it is that they can do and interacting with people in this context."
Miranda vs. Arizona was the landmark 1966 Supreme Court ruling that defined the rights of a suspect and buttressed the constitutional ban on forced self-incrimination in the Fifth Amendment.
Writing for a narrow 5-4 majority, Chief Justice Earl Warren said, "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him."
Joined by three others, Justice John Marshall Harlan's dissent dripped acid.
"The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion," Harlan wrote. "Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect and ultimately to discourage any confession at all."
Miranda didn't remain in isolation. In 1981's California vs. Prysock, the Supreme Court gave law enforcement some leeway, ruling that there was "no rigid rule" on the language of the warnings, just so suspects got warned.
Congress even tried to overturn Miranda with a federal law, but in 2000's Dickerson vs. United States, the Supreme Court upheld Miranda and struck the law down hard.
Writing for a 7-2 majority, Chief Justice William Rehnquist said, "Miranda, being a constitutional decision of this court, may not be in effect overruled by an act of Congress."
Justice Antonin Scalia was typically sour in dissent.
"Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance," Scalia said.
Of more concern to the Obama administration, and to U.S. counter-terrorism efforts, is 1984's New York vs. Quarles in which the Supreme Court constructed the public safety exception.
The case involved a rape suspect who, when captured by a New York police officer and asked where he had hidden his pistol, nodded toward some empty cartons in the back of a supermarket. After retrieving the gun, the officer advised the suspect of his Miranda rights.
The lower courts threw out the defendant's initial statements and the gun because the suspect had given it up before being advised of his rights, but the Supreme Court reversed.
Writing for a 6-3 majority, Rehnquist said an appeals court "erred in ... the exclusion of (the defendant's) initial statement and the gun because of (the arresting officer's) failure to read ... his Miranda rights before attempting to locate the weapon ... (and also) erred in ... the exclusion of (the suspect's) subsequent statements as illegal fruits of the Miranda violation. This case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda."
In other words, public safety can trump a suspect's rights.
Even the prospect of using Quarles to underpin a new law that puts Miranda aside in some cases has brought an immediate rebuke from the American Civil Liberties Union.
In a statement, Laura W. Murphy, director of the ACLU's Washington Legislative Office, said Holder "is now proposing that Congress chip away at the cherished Miranda protections. It's disappointing to hear Mr. Holder suggest that Americans should trade their freedoms for security. ... Gradually dismantling the Constitution will make us less free, but it will not make us more safe."
If the administration attempts to use the public safety exception to Miranda when questioning future suspects, it would be up to individual judges, the appeals courts and eventually the Supreme Court as to whether the exception was properly applied to head terror off at the pass.
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