Ever since the attempted Christmas Day airliner bombing, a debate has raged over whether the U.S. criminal justice system is equal to the challenges posed by international terrorism. This page has long believed that it is, but Rep. Adam Schiff (D- Burbank) has a different view, reflected in a bill known as the Questioning of Terrorism Suspects Act of 2010. As we see it, the legislation gives needlessly short shrift to individual rights.
The bill would do two things. It would express a nonbinding "sense of Congress" about how the Miranda rule should be applied to terrorist cases, and it would provide a terrorism exception to current practices that exist to ensure that suspects are brought before a magistrate without "unnecessary delay." In both cases, the intention is to allow interrogators more freedom to extract information from suspects for intelligence purposes without jeopardizing a criminal case.
We agree with Schiff that that's a laudable goal. But we disagree with the balance he strikes between acquiring intelligence and protecting the rights of criminal suspects.
Take the provisions in the bill dealing with the Miranda rule, which, as most TV watchers know, requires that suspects in custody be advised that they have the right to remain silent and the right to an attorney. Law enforcement officers and prosecutors worry that once terrorism suspects are advised of their rights, they might stop talking about pending or planned attacks — but that if they're not advised of their rights, their confessions might not be admissible in court. So Schiff has proposed applying to terrorism cases an existing exception to the Miranda rule under which police may question a suspect without reading him his rights if there is a danger to public safety — and still have the evidence used in court. (The exception was first announced in a 1984 case in which police questioned a suspect about the location of his gun without reading him his rights.)
We have no problem with that proposal in theory, although we think it's unnecessary. The public safety exception already has been invoked in the terrorist context; the Justice Department cited it in delaying Miranda warnings for Umar Farouk Abdulmutallab, the accused Christmas Day bomber. The Supreme Court is likely to ratify its use in that context whether or not Congress asks it to do so.
The problem with the bill is that it interprets the public safety exception too broadly. It would allow agents to question suspects without warning them of their rights "for as long as is necessary to protect the public from pending or planned attacks when a significant purpose of the interrogation is to gather intelligence and not solely to elicit testimonial evidence." The "significant purpose" language would allow Miranda warnings to be withheld even if the primary purpose of questioning was to obtain evidence for use in court. That goes too far.
Equally objectionable is the suggestion that a confession by a suspect in foreign custody be admissible in court even if there was no Miranda warning given. Our view is that if Americans are involved in the questioning, and the suspect is in jeopardy of prosecution in U.S. courts, the same rules should apply abroad as in this country.
Unlike its Miranda proposals, the bill's detention provisions would actually change federal law. The key provision would allow the government to ask a court for permission to question a suspect for 48 hours, or in some cases 96, before bringing him before a magistrate, a process known as "presentment." Currently, an otherwise valid confession is deemed inadmissible if a suspect is not taken before a magistrate within a reasonable amount of time, usually six hours.
Allowing the government to postpone a presentment and use the results of the extended interrogation encourages the abuses that a prompt presentment is designed to prevent, including, most notably, coerced confessions. Last year the Supreme Court emphasized the dangers of prolonged questioning in secret, saying, "No one with any smattering of the history of 20th century dictatorships needs a lecture on the subject."
We recognize that a prompt appearance before a magistrate might discourage some suspects from continuing to answer questions about an immediate threat to public safety. But even under present law, the six-hour rule isn't absolute, and a court might well conclude that an additional delay for the purposes of averting harm was reasonable and that the confession should be admitted.