The Federalist Society has a podcast up, Miranda & Terror Suspects, debating whether terrorism suspects should be given Miranda warnings. University of Utah law professors Paul Cassell and Amos Guiora debate the issue, and Richard D. Klingler of Sidley Austin LLP moderates. Cassell provides a slideshow to go with the audio file.
Listening to the podcast, I’m struck at how so many of the concerns cited by Cassell are already dealt with by existing case law. The Quarles case created a “public safety” exception to Miranda that allows officers to ask questions without giving Miranda warnings when there is an ongoing threat to public safety. In Quarles, a revolver hidden in a supermarket was enough to create the exception.
As I wrote at Townhall.com in August, the “public safety” exception has already been applied broadly in the terrorism context in United States v. Khalil:
In 1997, NYPD officers raided an apartment where two men had constructed pipe bombs and planned to detonate them on a subway or bus terminal. During the raid, the police shot and wounded the bomb maker as he lunged for a black bag containing the explosives.
After bomb technicians discovered that a switch on one of the pipe bombs had been flipped, officers questioned the wounded bomb maker about the number of bombs, how many switches had to be flipped to set them off, whether there was a timer, what wires to cut to disarm them, and whether they were intended as suicide devices. The Court of Appeals for the Second Circuit let all of the answers come into evidence via the public safety exception.
The public safety exception is settled law and has been ruled on by every federal circuit and over half the states, allowing police to deal with all manner of emergencies. Courts have allowed questions about the existence or location of guns, bombs, assault or kidnapping victims still in danger, accomplices and their identities, and plans for future crimes.
Add to this the fact that statements given before Miranda warnings are still admissible to impeach a suspect who changes his story when he gets to court, and that physical evidence obtained without Miranda warnings remains admissible.
So, here's a practical proposal: the above list ought to be distributed to counterterrorism task forces across the nation. Instead of spending time and energy on a measure that is out of Congress' power, have government lawyers create a pamphlet to educate the local, state and federal officers who will capture tomorrow's aspiring terrorist. Boil down the law to bullet points and put it on a business card so that they have it on hand when the next emergency unfolds. That's a tool first responders can use.