Flexibility, Criminal Procedure, and the War on Terror

We discussed Umar Farouk Abdulmutallab last week in Professor Sam Rascoff's Counter-Terrorism class. In case anyone's forgotten, the Administration's decision to Mirandize the underwear bomber right after he stepped off the plane led to an enormous partisan uproar, most notably between Senate Minority Leader Mitch McConnell and AG Eric Holder. A huge amount of that partisan debate was overblown; it was never quite clear how Mirandizing would interfere with interrogation. On the other hand, it's frustrating that so many people, including the Attorney General, I suspect, see criminal procedure as one single perfect and absolute method, which always protects criminal defendants. The Supreme Court has made criminal procedure far more flexible than that.

In the Abdulmutallab case, the Administration could have refused to Mirandize him in ways consistent with modern criminal procedure doctrine.

First, the Miranda Fifth Amendment right is a personal and trial right. That means that a non-Mirandized confession is not admissible at trial against Abdulmutallab, but the government can still prosecute Abdulmutallab and use the information in a non-trial setting. Abdulmutallab was arrested with his crotch on fire; there was sufficient evidence to convict him with or without a confession. Had he given us information which led to another suspected terrorist, that information could have been used at that person's trial, since the right is personal, and only Abdulmutallab could argue that his rights were violated.

Second, the interrogation might have been allowed because of the public safety exception, which allows the government to interrogate without Miranda (and use that information at trial) when they believe the suspect has information that that is an imminent danger to the public. Rick Pildes wrote a great blogpost about this issue.

As a subsidiary point, if the government began interrogating Abdulmutallab under the belief that there was imminent danger to the public, realized after he made incriminating statements that there was no danger, and then Mirandized him and had him repeat the incriminating statements for trial, Justice Kennedy's concurrence in Missouri v. Seibert (a badly fractured vote, but Kennedy's opinion is the narrowest and probably the law) would likely allow the statements to be admitted at trial.

I don't mean for this post to question the actual practice of Mirandizing suspected terrorists arrested on American soil, which might make sense from a policy perspective, or even to give uniformity to federal agents. Very smart people believe that such a tactic is beneficial, as an interrogation method and in maintaining our moral high ground. But that practice is not legally compelled by the Supreme Court, and should not be considered so.