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The FBI's Miranda Memo: Some Thoughts

Benjamin Wittes
Friday, March 25, 2011, 3:58 PM
The major significance of the FBI's Miranda memo, in my view, having now read it, is two-fold. First, it essentially states a policy of exploiting fully the Quarles public safety exception to Miranda in terrorism cases and interprets that exception broadly.

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The major significance of the FBI's Miranda memo, in my view, having now read it, is two-fold. First, it essentially states a policy of exploiting fully the Quarles public safety exception to Miranda in terrorism cases and interprets that exception broadly. Second, it sets up a process for continued unwarned questioning beyond the public safety window in some instances, sacrificing statement admissibility in the quest for actionable intelligence.
The executive branch, of course, cannot change constitutional law, but the new guidance gives agents a maximalist account of their possible latitude under Quarles, which held that "there is a 'public safety' exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence" and that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination."
Under the new guidance, the FBI interprets this opinion--which was given in the context of a brief delay in Mirandizing a suspect to secure his gun in the immediate aftermath of a rape--to authorize relatively protracted questioning of high-value or operational terrorist suspects about rather more than just ticking bombs. "If applicable," the memo reads, "agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights" (emphasis added). While if there is time, the agents should consult with FBI headquarters and the Justice Department on deferring Miranda, "the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to ensure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed." In other words, they are fully empowered to act on their own in deferring Miranda. Nor are they limited to Quarles-like questions concerning the location of weapons or the defusing of bombs:
In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case. Depending on the facts, such interrogation might include, for example, questions about possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks (emphasis added).
In short, and I say this in praise, not in criticism, the FBI has instructed agents to use the Quarles exception in unfolding terrorism cases as a default and to interpret it quite broadly.
The second significant thing in the document is the process it creates for those "exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continuing unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat" and that they are willing to forgo using the statements against the suspect in court. In such situations, the memo instructs, agents need to receive approval from the special agent in charge and, "whenever feasible," the SAC must consult first with the Justice Department and FBI headquarters before proceeding.
This option, of course, was always available to the bureau--as was exploiting the public safety exception. And the fact that the memo specifically says that "Presentment of an arrestee may not be delayed simply to continue the interrogation" without a waiver from the arrestee may limit its utility in practice. Presentment before a magistrate normally has to take place very quickly, so the window in which the public safety exception construed broadly will have lapsed yet presentment is still not yet required will generally be quite short, I suspect. that said, creating a formal process for those situations in which the bureau is really willing to forgo the evidentiary fruits of an interrogation in order to reap the intelligence benefit of it seems to me healthy too. It may happen rarely, but it might be quite valuable in those situations where it does.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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