PROTECTING THE WORST AMONG US: A NARROW QUARLES PUBLIC-SAFETY EXCEPTION IN THE BOSTON BOMBING AND OTHER TERROR INVESTIGATIONS ABSTRACT This Comment considers the public-safety exception to the Miranda requirements and, specifically, how the exception applies to the FBI’s 16-hour pre-Miranda interrogation of suspected Boston Marathon bomber Dzhokhar Tsarnaev. It details the history of the public-safety exception from its genesis in New York v. Quarles to the recent high-profile domestic-terror cases of Umar Farouk Abdulmutallab and Faisal Shahzad. While evaluating arguments for a less restrictive reading or an outright elimination of the publicsafety exception (as has been advocated by many politicians in the wake of domestic terror attacks) and for a narrow reading, this Comment argues that the narrower reading’s benefits outweigh its potential costs; such a reading preserves the constitutional rights of the accused, promotes faith and certainty in the system, and would not result in increased danger to the public. TABLE OF CONTENTS I. INTRODUCTION ............................................................................. 450 II. BACKGROUND ............................................................................. 452 A. The Fifth Amendment, Miranda, and Quarles ................... 452 B. From Times Square to Underwear: Application of the Quarles Public-Safety Exception in the Federal Circuits, Khalil, Shahzad, and Abdulmutallab ...................... 455 1. United States v. Khalil ................................................. 455 2. Shahzad ....................................................................... 456 3. Abdulmutallab ............................................................. 458 C. Reactions from Congress and the Department of Justice ................................................................................ 461 D. Proposed Tests for the Quarles Exception ....................... 464 III. DZHOKHAR TSARNAEV AND THE BOSTON BOMBING.................. 465 IV. PROSECUTING TERROR: A MILITARY OPTION, A BROAD QUARLES EXCEPTION, OR A NARROW EXCEPTION? ........................... 468 A. Military Tribunals ............................................................. 468 B. Broad Public-Safety Exception ......................................... 470 C. Narrow Public-Safety Exception ...................................... 472 450 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 V. CONCLUSION ............................................................................... 477 I. INTRODUCTION On August 15, 2013, a deafening explosion tore through jubilant marathoners and the densely packed crowds that gathered to cheer them on in the heart of Boston.1 Seconds later another blast went off, hurling shrapnel into the panicked crowd at the Marathon finish line.2 The twin improvised-explosive devices, planted by brothers Tamerlan and Dzhokhar Tsarnaev just minutes before, killed 3 and injured close to 300, adding a bloody new page to the growing list of terror attacks in post-9/11 America.3 Tragically, domestic terror attacks like the Boston Bombing have become an all-too-familiar feature of the American landscape in recent years. Since 2009, the country has suffered mass shootings at Fort Hood,4 a Sikh temple in Wisconsin,5 a movie theater in Aurora, Colorado,6 and in Tucson, which killed six and wounded Congresswoman Gabrielle Giffords.7 Law enforcement has become all too aware of the desperate urgency of not only identifying and arresting the perpetrators, but also ensuring that those individuals have not planned or participated in additional terror plots. This urgency was exemplified in the Boston Bombing, where police found additional explosive devices both with the Tsarnaevs and a short distance away from the site of the two original blasts.8 1. Court Documents Detail Timeline in Marathon Bombing, (June 4, 2013, 2:19 PM), http://www.myfoxboston.com/ story/22044162/court-documents-detail-timeline-in-marathon-bombing. 2. Id. 3. Id. 4. Gunman Kills 12, Wounds 31 at Fort Hood, NBCNEWS.COM (Nov. 5, 2009, 10:48 PM), http://www.nbcnews.com/id/33678801. 5. CNN Wire Staff, Gunman, Six Others Dead at Wisconsin Sikh Temple, CNN (Aug. 5, 2012, 10:36 PM), http://www.cnn.com/2012/08/05/us/wisconsintemple-shooting. 6. Michael Pearson, Gunman Turns ‘Batman’ Screening into Real-Life ‘Horror Film’, CNN (July 20, 2012, 9:59 PM), http://www.cnn.com/2012/07/20/ us/colorado-theater-shooting/index.html. 7. Marc Lacey & David M. Herszenhorn, In Attack’s Wake, Political Repercussions, N.Y. TIMES, Jan. 8, 2011, http://www.nytimes.com/2011/01/09/us/ politics/09giffords.html. 8. Josh Levs & Monte Plott, Boy, 8, One of 3 Killed in Bombings at Boston Marathon; Scores Wounded, CNN (Apr. 18, 2013, 10:25 AM), MY FOX BOSTON . COM 2013] PROTECTING THE WORST AMONG US 451 Any American who has watched a crime show is familiar with the rights created by the Supreme Court of the United States’ decision in Miranda v. Arizona.9 The Court recognized that danger to the general public or law enforcement could supersede those rights when it created the public-safety exception in New York v. Quarles.10 But now some commentators argue that the frequency of domestic terror attacks calls for a far broader public-safety exception or the outright suspension of Miranda safeguards for terror suspects.11 Others, concerned about civil liberties, insist that domestic terror suspects should be treated no differently than any other criminal suspect and provided with the appropriate constitutional protections and safeguards. Vital policy considerations inform both sides of this debate. Proponents of a broad view or a special rule for terror cases raise concerns over additional loss of life, coordinated attacks, and the fact that the current public-safety exception does not contemplate largescale contemporary terror plots.12 Their ideological opponents cite the need for continuity, fairness, adherence to existing precedent, and maintaining constitutional protection for the accused.13 With an increasing number of terror attacks committed by American citizens on American soil, it is exceedingly important to the law enforcement and legal communities to resolve this issue. This Comment argues for a narrow reading of the Quarles publicsafety exception in terror cases because the benefits outweigh the potential costs. A narrow reading preserves the constitutional rights http://www.cnn.com/2013/04/15/us/boston-marathon-explosions; David Abel et al., Accused Marathon Bomber Faces 30-Count Indictment, BOSTON GLOBE, June 27, 2013, http://www.bostonglobe.com/metro/2013/06/27/boston-marathon-bombsuspect-dzhokhar-tsarnaev-face-state-federalindictments/y9v7apoiowQxx1BrUMGPnL/story.html. 9. 384 U.S. 436 (1966). 10. 467 U.S. 649 (1984). 11. See David T. Hartmann, The Public Safety Exception to Miranda and the War on Terror: Desperate Times Do Not Always Call for Desperate Measures, 22 GEO. MASON U. C.R. L.J. 219, 244 (2012); see also Peter Baker, A Renewed Debate over Suspect Rights, N.Y. TIMES, May 4, 2010, http://www.nytimes.com/ 2010/05/05/nyregion/05arrest.html; Charlie Savage, Holder Backs a Miranda Limit for Terror Suspects, N.Y. TIMES, May 9, 2010, http://www.nytimes.com/2010/05/ 10/us/politics/10holder.html. 12. See infra Part IV.B. 13. See infra Part IV.C. 452 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 of the accused, promotes faith and certainty in the system, and would not further endanger the public. II. BACKGROUND A. The Fifth Amendment, Miranda, and Quarles One of the cornerstones governing interrogations of suspects is the Fifth Amendment, which pledges that no defendant will be compelled to be a witness against himself.14 Due to concerns about the inherently coercive nature of custodial interrogation,15 the Supreme Court ruled in Miranda that a suspect’s statements made during a custodial interrogation are inadmissible in court unless the prosecution demonstrates that it took certain measures to safeguard the suspect’s right against self-incrimination.16 These measures include affirming the right to remain silent, the right to counsel regardless of ability to pay, and the acknowledgement that any statements made may be used against the suspect.17 Importantly, the majority also defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,”18 thereby encompassing encounters outside the traditional police interrogation room. While the minority19 and naysayers across the country20 forecasted a plague of criminals set free by Miranda, the Court’s decision has little to no negative impact on law-enforcement efforts. Studies suggest that over 80% of Mirandized suspects willingly waive their rights.21 And in the vast majority of cases, law 14. U.S. CONST. amend. V. 15. See Miranda, 384 U.S. at 454, 461, 467. 16. Id. at 444. 17. Id. 18. Id. 19. See id. at 516–17 (Harlan, J., dissenting). 20. See H. Lynn Edwards, The Effects of “Miranda” on the Work of the Federal Bureau of Investigation, 5 AM. CRIM. L. Q. 159, 160–61 (1966); see also Fred E. Inbau, Crime and the Supreme Court, 6 CRIMINOLOGICA 29, 29 (1968). “The decisions that have severely handicapped the police and created the big loopholes through which the guilty escape have been a contributing factor in the increase of crime in recent years.” Id. 21. See, e.g., Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 859 (1996). 2013] PROTECTING THE WORST AMONG US 453 enforcement’s evidence is not limited to the suspect’s statements.22 But perhaps the best indication that Miranda does not frustrate lawenforcement efforts is that the FBI itself has spoken out in defense of Miranda procedures. In 2010, FBI Director Robert Mueller remarked that “Miranda has not stood in the way of getting extensive intelligence . . . .”23 And three retired FBI interrogators wrote to the President that “[i]n our decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with our ability to obtain useful information or make prosecutable cases.”24 Despite both the qualitative evidence and the anecdotal support of experienced law-enforcement professionals indicating that Miranda does not hinder law enforcement, several post-Miranda decisions chipped away at the newly established rights by creating exceptions in certain situations. Arguably the most significant post-Miranda decision was New York v. Quarles.25 In Quarles, a rape victim flagged down police, described her attacker, and told the officers that the man in question had just entered a nearby grocery store with a gun.26 The officers entered the grocery store, located the suspect, and then handcuffed and arrested him.27 But the suspect was no longer carrying the gun.28 The officers, fearing that a customer might find the gun and harm someone, asked the suspect, “Where’s the gun?” before reading him his Miranda rights.29 Only after the suspect answered the question and the officers recovered the gun did the officers read him his rights.30 At trial, Quarles attempted to suppress the gun on the grounds that the officers’ question about its location was obtained in violation 22. See DAVID S. KRIS & J. DOUGLAS W ILSON, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS § 24:5 (2d ed. 2013). 23. Chris Strohm, FBI Says Miranda Readings Don’t Hurt Bureau, GOV’T EXECUTIVE (Oct. 6, 2010), http://www.govexec.com/defense/2010/10/fbi-saysmiranda-readings-dont-hurt-bureau/32505/. 24. Spencer Ackerman, FBI Interrogators Urge Obama to Keep Miranda Warnings Intact, WASH. INDEP. (May 13, 2010, 9:32 AM), http://washingtonindependent.com/8476/fbi-interrogators-urge-obama-to-keepmiranda-warnings-intact. 25. 467 U.S. 649 (1984). 26. Id. at 651–52. 27. Id. at 652. 28. Id. 29. Id. 30. Id. 454 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 of Miranda.31 The Supreme Court took the opportunity to carve out a crucial exception to Miranda.32 Reasoning that the facts of the case “present[ed] a situation where concern for public safety must be paramount,”33 the majority asserted a “public safety” exception to the Miranda requirements. This exception made a suspect’s unMirandized statements fully admissible so long as they were “reasonably prompted by a concern for public safety.”34 The Court noted that use of the public-safety exception does not require a concern for the public alone; the exception is also applicable when there is a reasonable concern for the officers’ safety.35 But the Court cautioned that the new exception must be construed narrowly.36 So both law-enforcement officers and reviewing courts were to draw a clear line between questions designed to lessen fears for public safety and questions designed solely to elicit testimonial evidence.37 In Quarles, the Court held that potential concealment of the gun in a public area was sufficient to trigger the public-safety exception and render Quarles’s statements admissible.38 In his dissent, Justice Marshall raised two primary concerns that remain today. First, Justice Marshall insisted that the type of emergency questioning at issue in Quarles was—and always had been—available to law enforcement; in situations where time was of the essence or Miranda was otherwise impracticable, interrogators were completely free to ask questions if they were equally prepared to forego admission of the resulting statements at an eventual trial.39 In Justice Marshall’s view, this made the public-safety exception superfluous. Second, he agreed with the Miranda majority in their view that the right against self-incrimination trumped whatever public-safety concerns might exist.40 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. Id. at 652–53. Id. Id. Id. at 656. Id. at 655–56. Id. at 658. Id. at 658–59. Id. at 657, 659–60. Id. at 686 (Marshall, J., dissenting). Id. at 688 (Marshall, J., dissenting). The majority should not be permitted to elude the Amendment’s absolute prohibition simply by calculating special costs that arise when the public’s safety is at issue. Indeed, were constitutional 2013] PROTECTING THE WORST AMONG US 455 B. From Times Square to Underwear: Application of the Quarles Public-Safety Exception in the Federal Circuits, Khalil, Shahzad, and Abdulmutallab Since the Quarles decision in 1984, most federal circuit courts have analyzed public-safety-exception cases using one of two different approaches.41 The Second, Fourth, Fifth, Sixth, and Tenth Circuits employ a narrow approach to the exception, requiring “officers to have actual knowledge of an imminent threat to public safety before utilizing [it].”42 Conversely, the First, Eighth, and Ninth Circuits favor a broad approach, permitting use of the exception when there are “inherently dangerous circumstances posing a material threat to officers or the public, without regard to an immediate or objective threat.”43 The remaining circuits have either not ruled on the subject or have applied inconsistent approaches.44 While the majority of public-safety-exception cases have involved firearms or drugs, only a mere handful involved pipe bombs or other explosives.45 1. United States v. Khalil Compared to the facts in the Tsarnaev investigation, the most similar case is United States v. Khalil.46 In Khalil, the suspects’ roommate tipped off New York City police that co-defendants Gazi Ibrahim Abu Mezer and Lafi Khalil were planning to bomb a subway train to “punish the United States for supporting Israel.”47 When police raided the apartment, one of the defendants grappled with an officer, attempting to take his gun; the other attempted to reach a adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties. Id. 41. Keith A. Petty, A Different Kind of Criminal? Miranda, Terror Suspects, and the Public Safety Exception, 4 ELON L. REV. 175, 181 (2012). 42. Id. 43. Id. (quoting Rorie A. Norton, Note, Matters of Public Safety and the Current Quarrel over the Scope of the Quarles Exception to Miranda, 78 FORDHAM L. REV. 1931, 1934 (2010)). 44. Id. at 182. 45. See Joanna Wright, Mirandizing Terrorists? An Empirical Analysis of the Public Safety Exception, 111 COLUM. L. REV. 1296, 1320 (2011). 46. 214 F.3d 111 (2d Cir. 2000). 47. Id. at 116 (citations omitted). 456 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 black bag that officers believed contained the bombs. The police shot and wounded both men, disabling them.48 The officers then discovered that the black bag did indeed contain pipe bombs and that a switch on one of them had been flipped.49 Justifiably concerned for their safety and the safety of the surrounding general public, the police questioned Abu Mezer at the hospital while he received treatment for his injuries—and before he was Mirandized.50 Abu Mezer spoke freely, responding completely to questions about the number of bombs he made, how they were constructed, and how they could best be defused.51 He also professed to be “with” the Hamas terrorist organization and noted a specific subway train he intended to bomb because he believed that “there were a lot of Jews who [rode] that train.”52 At trial, Khalil and Abu Mezer moved to suppress the statements given at the hospital, noting the lack of Miranda warnings throughout the interrogation.53 In response, the government cited the publicsafety exception to justify their actions.54 The Court of Appeals for the Second Circuit applied a narrow approach to the public-safety exception and held that the officers’ questioning fit comfortably within its bounds.55 So Abu Mezer’s hospital-interrogation statements were admissible in their entirety.56 2. Shahzad But not all statements elicited by interrogation under the publicsafety exception are used at trial. Faisal Shahzad, a naturalized United States citizen born in Pakistan, was a college-educated suburban homeowner and father living in Bridgeport, Connecticut.57 48. Id. at 115. 49. Id. 50. Id. at 115, 121. 51. Id. at 115. 52. Id. at 116. 53. Id. at 121. 54. Id. 55. Id. 56. Id. at 122. It is noteworthy that the events in Khalil occurred before the terrorist attacks on September 11, 2001. Id. 57. Nina Bernstein, Bombing Suspect’s Route to Citizenship Reveals Limitations, N.Y. TIMES, May 7, 2010, http://www.nytimes.com/2010/05/08/ nyregion/08immig.html. 2013] PROTECTING THE WORST AMONG US 457 But ties with militant Muslims, his own financial difficulties,58 and the 2007 Pakistani commando attack on the Red Mosque in Islamabad, which left over 100 Muslims dead, led to his radicalization.59 Shahzad traveled to Pakistan where the Pakistani Taliban gave him five days of explosives training, financial backing, and a plan to execute when he returned to the United States.60 On May 1, 2010, Shahzad left a newly purchased vehicle loaded with gasoline, propane, fertilizer, and fireworks in New York City’s Times Square and attempted to ignite the homemade bomb.61 Passersby were alarmed by smoke and “popping sounds” coming from the vehicle and flagged down police, who called the bomb squad.62 Ultimately, the explosives failed to ignite, and authorities searched the vehicle without further incident.63 After identifying Shahzad through the vehicle he bought in Connecticut, the FBI arrested him two days later when he boarded an international flight bound for Dubai.64 After his arrest, interrogators used the public-safety exception to question Shahzad without advising him of his Miranda rights.65 This 58. See generally Alexis Mainland et al., Timeline: Faisal Shahzad, NYTIMES.COM (May 5, 2010), http://www.nytimes.com/interactive/2010/05/05/ nyregion/shahzad-timeline.html (discussing that, among other setbacks, Chase Financial foreclosed on Shahzad’s house in September 2009). 59. Andrea Elliott, Militant’s Path from Pakistan to Times Square, N.Y. TIMES, June 22, 2010, http://www.nytimes.com/2010/06/23/world/ 23terror.html?pagewanted=all (stating that while the siege of the Red Mosque and the subsequent deadly raid were carried out by Pakistani forces, Shahzad and other radicals felt that it was carried out at the behest and with the enthusiastic approval of the United States). 60. Id. 61. Mark Mazzetti et al., Suspect, Charged, Said to Admit to Role in Plot, N.Y. TIMES, May 4, 2010, http://www.nytimes.com/2010/05/05/nyregion/ 05bomb.html?ref=faisalshahzad. 62. Michael M. Grynbaum et al., Police Seek Man Taped Near Times Sq. Bomb Scene, N.Y. TIMES, May 2, 2010, http://www.nytimes.com/2010/05/03/nyregion/ 03timessquare.html. 63. Id.; see also Murray Weiss, One Thing Bothering Faisal . . ., N.Y. POST, May 20, 2010, http://www.nypost.com/p/news/local/ one_thing_bothering_faisal_SblxnJA7jm9JjRj6cqp4nM (discussing that the fireworks used were not powerful enough to ignite the explosives, and even had they been, the fertilizer was non-explosive). 64. Weiss, supra note 63. 65. Stephanie Condon, Faisal Shahzad Was Read Miranda Rights After Initial Questioning, CBSNEWS (May 4, 2010, 6:20 PM), http://www.cbsnews.com/8301- 458 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 initial interrogation began on the evening of May 3, 2010 and continued on into the early morning hours of May 4. At some indeterminate point that day, detectives read Shahzad his rights.66 Presumably before being Mirandized, Shahzad freely admitted that he planned to detonate another car bomb in New York City had he not been arrested.67 Even after being advised of his rights, Shahzad cooperated fully with his interrogators, providing what Assistant FBI Director John Pistone called “valuable intelligence and evidence . . . .”68 Subsequently, Shahzad’s statements led directly to multiple arrests in Pakistan, including a Pakistani army major.69 Ultimately, Shahzad pleaded guilty to all counts against him and received a mandatory life sentence.70 At his sentencing, Shahzad protested for the first time that he was not Mirandized on May 4.71 He stated that he “asked for the [sic] Miranda” on the second day of his initial interrogation and that “the F.B.I. denied it to [him] for two weeks” while simultaneously threatening his family.72 The truth of that untimely assertion was never determined because Shahzad’s guilty plea made the issue moot. 3. Abdulmutallab Like Faisal Shahzad, Umar Farouk Abdulmutallab, known as the Underwear Bomber, sought to attack the United States as a gesture of Muslim jihad. He cited his religious obligation, anger over United States support of Israel, and his long-simmering hatred of the United 503544_162-20004108-503544/faisal-shahzad-was-read-miranda-rights-afterinitial-questioning/. 66. Warren Richey, Miranda Rights and Alleged Times Square Bomber: Questions Linger, CHRISTIAN SCI. MONITOR, May 4, 2010, http://www.csmonitor.com/USA/Justice/2010/0504/Miranda-rights-and-allegedTimes-Square-bomber-questions-linger. 67. Press Release, Fed. Bureau of Investigation, Faisal Shahzad Sentenced in Manhattan Fed. Court to Life in Prison for Attempted Car Bombing in Times Square (Oct. 5, 2010), available at http://www.fbi.gov/newyork/press-releases/ 2010/nyfo100510.htm. 68. Richey, supra note 66. 69. Faisal Shahzad Probe Earns Pakistan CIA Visit, CBSNEWS (May 19, 2010, 12:14 PM), http://www.cbsnews.com/2100-202_162-6499127.html. 70. Michael Wilson, Shahzad Gets Life Term for Times Square Bombing Attempt, N.Y. TIMES, Oct. 5, 2010, http://www.nytimes.com/2010/10/06/nyregion/ 06shahzad.html?_r=0. 71. Id. 72. Id. 2013] PROTECTING THE WORST AMONG US 459 States for the killing of Muslims in Israel, Yemen, Iraq, Somalia, and Afghanistan as motivating forces.73 In 2009, Abdulmutallab traveled to Yemen where an al-Qaeda terrorist group trained, advised, and equipped him.74 On his trip back to the United States, Abdulmutallab attempted to detonate an explosive device concealed in his underwear shortly before his flight landed in Detroit on Christmas Day, 2009.75 The bomb was specially constructed to elude metal detectors and airport screeners and contained PETN and TATP—two powerful explosives.76 Abdulmutallab planned to detonate the explosives using a chemical-filled syringe.77 But the device failed to work properly and set only a small fire, causing minimal damage to the aircraft’s cabin wall and severe burns to Abdulmutallab’s thighs and genitals.78 The flight crew and passengers immediately restrained Abdulmutallab,79 and U. S. Customs and Border Protection officers took him into custody as soon as the flight landed.80 Noting that Abdulmutallab’s burns required serious medical attention, the officers transported him to the hospital and contacted the FBI.81 Abdulmutallab admitted that he acted on behalf of alQaeda and revealed details about his plan and the explosive device 73. David Ashenfelter & Tresa Baldas, Underwear Bomber Pleads Guilty in Surprise Move, DETROIT FREE PRESS, Oct. 13, 2011, http://www.freep.com/ article/20111013/NEWS06/110130494/Underwear-bomber-pleads-guilty-surprisemove. 74. Dan Murphy, Al-Qaeda Ties of Umar Farouk Abdulmutallab: How Deep do they Go?, CHRISTIAN SCI. MONITOR, Dec. 28, 2009, http://www.csmonitor.com/ World/Global-News/2009/1229/Al-Qaeda-ties-of-Umar-Farouk-AbdulmutallabHow-deep-do-they-go. 75. Press Release, Fed. Bureau of Investigation, “Underwear Bomber” Umar Farouk Abdulmutallab Pleads Guilty (Oct. 12, 2011), available at http://www.fbi.gov/detroit/press-releases/2011/underwear-bomber-umar-faroukabdulmutallab-pleads-guilty [hereinafter Abdulmutallab Press Release]. 76. Id. 77. Id. 78. Adam Martin, The Surreal Moments of the Underwear Bomber’s Trial, WIRE (Oct. 12, 2011, 12:02 PM), http://www.thewire.com/national/2011/10/ laughing-at-danger-the-underwear-bombers-surreal-trial/43580/. 79. Peter Slevin, Fear and Heroism Aboard Flight 253, W ASH. POST, Dec. 27, 2009, http://articles.washingtonpost.com/2009-12-27/news/36928724_1_jasperschuringa-passenger-jet-umar-farouk-abdulmutallab. 80. United States v. Abdulmutallab, No. 10-20005, 2011 WL 4345243, at *1 (E.D. Mich. Sept. 16, 2011). 81. Id. 460 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 before arriving at the hospital.82 At this point, none of the authorities involved advised him of his Miranda rights.83 The Customs officers who brought Abdulmutallab to the hospital told the FBI about his ties to al-Qaeda, and the interrogating agents were concerned that additional terror attacks might be imminent in the United States and across the globe.84 After receiving treatment and painkilling medication, he was moved to a hospital room where two FBI special agents and a Customs officer began interrogating him.85 They questioned Abdulmutallab for roughly 50 minutes without reading him his rights, interrogating him about where he traveled, when he had traveled, how, and with whom; the details of the explosive device; the details regarding the bomb-maker, including where Defendant had received the bomb; his intentions in attacking Flight 253; and who else might be planning an attack. Every question sought to identify any other potential attackers and to prevent another potential attack.86 Once the agents had the information they were looking for (or were satisfied that Abdulmutallab could not provide it to them), they stopped interrogating him.87 Shortly after, they read him his rights and shared his statements with “other law enforcement and intelligence agencies worldwide, further underscoring that it was obtained for purposes of public safety, to deal with other possible threats.”88 During prosecution, Abdulmutallab moved to suppress the statements he made on the way to the hospital, during his treatment, and in the course of the 50-minute FBI interrogation on the grounds, among other things, that the public-safety exception did not apply 82. Id. 83. See id.; Eugene Volokh, Consitutional Rights of Non-Citizens, VOLOKH CONSPIRACY (Feb. 18, 2009, 8:31 PM), http://www.volokh.com/posts/ 1235007104.shtml (discussing the applicability of Miranda rights for foreign nationals). 84. Abdulmutallab, 2011 WL 4345243, at *1. 85. Id. 86. Id. at *2. 87. Id. 88. Id. at *6. 2013] PROTECTING THE WORST AMONG US 461 under the circumstances.89 A federal judge for the Eastern District of Michigan denied the motion, holding that the exception was appropriate.90 The judge reasoned that the agents were justified in suspecting a multi-pronged attack based on their “training, experience, and knowledge of earlier al-Qaeda attacks.”91 And the judge noted that all of the FBI’s questions were intended to address that suspicion, and the interrogation’s brief duration supported the FBI’s assertion that the agents only delayed Miranda to address specific, legitimate public-safety concerns.92 Because Abdulmutallab later pleaded guilty, the judge’s ruling on the motion to suppress provides the only official court record that exists on the FBI’s use of the exception in this case.93 C. Reactions from Congress and the Department of Justice Thanks to these headline-grabbing cases, figures across the political spectrum have weighed in on Miranda rights for terrorists and, more specifically, use of the public-safety exception in terror cases. Although Attorney General Eric Holder previously made vigorous arguments that the criminal-justice system was properly equipped to deal with terrorist prosecutions, he abruptly reversed his position in 2010.94 He declared that “interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions” and called on Congress to pass legislation allowing law enforcement to bypass Miranda completely when interrogating terror suspects.95 That same year, Democratic Representative Adam Schiff introduced the Questioning Terrorism Suspects Act, aiming to automatically codify the public-safety exception in all terrorism interrogations.96 Under the proposed legislation, within six hours of the arrest, the federal government must apply to a judicial officer with evidence that the arrestee is (1) a terrorism suspect who (2) “may be able to provide intelligence necessary to protect the public safety.” If the judge approves this application, 89. 90. 91. 92. 93. 94. 95. 96. Id. at *5. Id. Id. Id. at *5–6. Abdulmutallab Press Release, supra note 75. Savage, supra note 11. Id. Hartmann, supra note 11, at 244. 462 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 the public safety exception would apply for the following 48 hours. During this time the suspect would remain uninformed of his Miranda rights, and “any confession made . . . [would] not be considered inadmissible.”97 Representative Schiff’s colleagues on the other side of the aisle also called for an overhaul of Miranda and the public-safety exception. In the wake of Shahzad’s attempted Times Square bombing, Republican Senator Christopher S. Bond said, “We’ve got to be far less interested in protecting the privacy rights of these terrorists than in collecting information that may lead us to details of broader schemes to carry out attacks in the United States.”98 Republican Representative Peter King thought that framing the debate in terms of a criminal prosecution was a mistake.99 Instead he called for prosecution by military commissions as a way of collecting more information from terror suspects.100 And Senator John McCain opined that the primary concern in interrogating terror suspects should be collecting evidence that could be used to prevent future attacks.101 “Our priority,” added Senator McCain, “should not be telling them they have a right to remain silent.”102 As stated above, the FBI has endorsed the use of Miranda and the public-safety exception in all criminal prosecutions, including terror cases.103 Indeed, the Bureau’s own Domestic Investigations and Operations Guide and Legal Handbook for Special Agents explicitly states that, for interrogations taking place on United States soil, “Miranda warnings are required to be given prior to custodial interviews.”104 But this does not apply to interrogations under the public-safety exception.105 Interrogation guidelines under the exception have been largely absent, at least officially. But a 2011 internal memorandum leaked to the New York Times shines a light on the Bureau’s evolving stance on interrogating terror 97. 98. 99. 100. 101. 102. 103. 104. 105. Id. at 244–45 (internal citations omitted). Baker, supra note 11. Id. Id. Id. Id. See Ackerman, supra note 24. KRIS & W ILSON, supra note 22, at n.10. Id. 2013] PROTECTING THE WORST AMONG US 463 suspects.106 The memo begins by reaffirming existing policy.107 But it also provides that “the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive publicsafety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.” 108 This permits more leeway under the exception than was previously available to interrogators. The memo also instructs agents that “[t]here may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat . . . .” 109 This appears to run counter to the majority of public-safety-exception jurisprudence. The Obama administration has been silent on the contents of the memo, and no criminal cases have come to light involving a use of the public-safety exception under its terms. No matter the Bureau’s public stance, it is apparently wrestling with redefining and potentially broadening the scope of the exception in the face of recent domestic terrorism. 106. F.B.I. Memorandum, N.Y. TIMES, Mar. 25, 2011, http://www.nytimes.com/ 2011/03/25/us/25miranda-text.html?_r=0&gwh=190A6279E487BE3D1B55F35 1795DA95C. 107. Id. The Department of Justice and the FBI believe that we can maximize our ability to accomplish these objectives [i.e. identifying, apprehending, interrogating, and detaining suspected terrorists] by continuing to adhere to FBI policy regarding the use of Miranda warnings for custodial interrogation of operational terrorists who are arrested inside the United States . . . . Id. 108. Id. Interestingly, the memo goes on to define an operational terrorist [as] an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation. Id. This casts a fairly wide net and would presumably apply to a wide range of apolitical, relatively small-scale crimes so long as the offenses could somehow be termed a terrorist operation and involved risk to life. 109. Id. 464 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 D. Proposed Tests for the Quarles Exception Legal scholars and commentators have weighed in on this debate with two potential approaches deserving particular mention. One approach is a three-part test to judge whether an interrogation satisfies the public-safety exception under Quarles.110 First, when an objective threat is present, the officer “must have a reason to believe the suspect has, or recently had, a weapon.”111 Second, the threat must be immediate, meaning that “someone other than the police must be able to gain access to the weapon and inflict harm with it.”112 Third, a court would objectively evaluate the officer’s questions “to ensure that they are narrowly tailored to the threat at hand” and to determine compliance with Quarles.113 While this approach is meant to address public-safety-exception cases in general and not the subset of terror-suspect interrogations,114 it generally conforms to the more narrow approach adopted by the Second, Fourth, Fifth, Sixth, and Tenth Circuits requiring “officers to have actual knowledge of an imminent threat to public safety before utilizing the exception.”115 The second approach is to adopt a far broader public-safety exception in terror cases.116 This approach bears a strong resemblance to Representative Schiff’s aforementioned legislation117 and proposes that a public-safety exception would be “automatically deemed to exist” whenever a suspect is arrested for a terrorismrelated offense.118 Law enforcement would not be required to comply with Miranda at any point thereafter, and the suspect’s statements would remain admissible at trial.119 And rather than mandating the presence of an objective, immediate threat or actual knowledge, “the detaining officer under this standard need only have a reasonable belief that the suspect is 110. Petty, supra note 41, at 196. 111. Id. 112. Id. 113. Id. 114. Id. 115. Id. at 181. 116. See Paul Cassell, Time to Codify a Miranda Exception for Terrorists?, VOLOKH CONSPIRACY (Oct. 21, 2010, 10:27 AM), http://www.volokh.com/ 2010/10/21/time-to-codify-a-miranda-exception-for-terrorists/. 117. See Hartmann, supra note 11, at 244–45. 118. Cassell, supra note 116. 119. Id. 2013] PROTECTING THE WORST AMONG US 465 involved in a terrorism related offense.”120 This approach significantly expands the public-safety exception beyond even the broad approach favored by the First, Eighth, and Ninth Circuits.121 For the reasons listed below, this approach to the Quarles exception is inferior to the narrow exception and provides minimal gains that do not offset the social costs and erosion of constitutional rights. III. DZHOKHAR TSARNAEV AND THE BOSTON BOMBING In early 2013, Dzhokhar Tsarnaev enacted a plot and inadvertently stepped into these varying applications of the publicsafety exception. Brothers Dzhokhar and Tamerlan Tsarnaev, both ethnic Chechens,122 emigrated to the United States separately with family members in 2002 and 2004.123 Despite never living in Chechnya, the brothers’ Internet and social-media usage indicates that both—especially the elder Tamerlan—were powerfully drawn to that country’s long-standing and bloody conflict with Russia.124 While the brothers acclimated to their new home with varying degrees of success,125 only Dzhokhar became a naturalized citizen, taking the oath of citizenship in September 2012.126 Though the picture is not yet complete, sometime while living in the United States the Tsarnaevs gravitated toward radical Islam and began downloading essays and exhortations written by current and former al-Qaeda members.127 Also during this time, one or both of 120. Id. 121. Petty, supra note 41, at 181. 122. Miriam Elder & Matt Williams, Chechnya Connections Build Picture of Tamerlan and Dzhokhar Tsarnaev, THEGUARDIAN, Apr. 19, 2013, http://www.guardian.co.uk/world/2013/apr/19/tamerlan-dzhokhar-tsarnaev-bostonbombings-chechnya. 123. Id. 124. Id. 125. Id. 126. John R. Ellement et al., Dzhokhar Tsarnaev, Marathon Bombing Suspect, Charged in Federal Court with Using a Weapon of Mass Destruction, BOSTON GLOBE, Apr. 22, 2013, http://www.boston.com/metrodesk/2013/04/22/whitehouse-dzhokhar-tsarnaev-bombing-suspect-tried-federal-court/VvkTs5UtwmsuEn KMXMVSXM/story.html. 127. Denise Lavoie & Tom Hays, Dzhokhar Tsarnaev, Boston Bombing Suspect, Was Influenced by Internet: Indictment, HUFFINGTON P OST (June 28, 2013, 6:37 AM), http://www.huffingtonpost.com/2013/06/28/dzohkhar-tsarnaev-internetindictment_n_3515432.html; see also Janet Reitman, Jahar’s World, ROLLING STONE, July 17, 2013, at 46, available at http://www.rollingstone.com/culture/ 466 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 the brothers returned periodically to Dagestan and possibly visited Chechnya.128 Both countries have been referred to as “recruiting grounds for Muslim extremists.”129 In 2012, law-enforcement officials confirmed that Tamerlan spent six months in Dagestan, where he may have received terrorist training.130 On April 15, 2013, the Tsarnaevs put into motion the plan that Bill Keating, House Homeland Security Committee member, called a “sophisticated, coordinated, planned attack.”131 While mingling with the densely packed crowd near the Boston Marathon’s finish line, the brothers planted homemade explosive devices assembled from pressure cookers and explosive powder purchased online.132 One of the Tsarnaevs downloaded the instructions from a jihadi website.133 Placing the pressure-cooker devices in backpacks, the duo set down their bundles and walked away shortly before the explosions ripped through the crowd.134 These explosives killed 3 and wounded close to 300.135 And the police later found two additional pressure-cooker devices that could have killed or injured many more.136 Armed with knives, firearms, and more homemade explosive devices,137 the Tsarnaevs eluded authorities for four days, killing a Massachusetts Institute of Technology police officer and then carjacking, kidnapping, and robbing a passing motorist.138 After identifying the brothers through various security cameras at the scene of the bombing, police finally cornered them in Watertown, Massachusetts, where Tamerlan was killed in a police shootout.139 news/ahars-world-20130717 (detailing the declining fortunes of the Tsarnaev family in the United States). Given their similar financial and social reverses, parallels can certainly be drawn between the radicalization of the Tsarnaev brothers and that of Faisal Shahzad. 128. Elder & Williams, supra note 122. 129. Associated Press, AP: Feds: Boston Suspect Downloaded Bomb Instructions, HERALD SUN, June 27, 2013, http://www.heraldsun.com/news/blog/ nationworld/x1065839567/AP-Feds-Boston-suspect-downloaded-bombinstructions. 130. Id. 131. Levs & Plott, supra note 8. 132. Abel et al., supra note 8. 133. Id. 134. Id. 135. Id. 136. Levs & Plott, supra note 8. 137. Abel et al., supra note 8. 138. Id. 139. Id. 2013] PROTECTING THE WORST AMONG US 467 Dzhokhar was seriously wounded but managed to hide in a boat for several hours before police found and arrested him.140 Authorities rushed Dzhokhar to the hospital, where FBI and other law-enforcement officials remained by his side during his treatment.141 Dzhokhar was transferred to a federal-prison hospital two days later, immediately after his condition stabilized.142 After prosecutors charged Tsarnaev with using a weapon of mass destruction, the FBI began interrogating him.143 He was not advised of his Miranda rights.144 For 16 hours, members of the FBI High Value Detainee Interrogation Group questioned Tsarnaev, who had to write his answers because his throat was so seriously wounded.145 While the full substance of the interrogation is uncertain, Tsarnaev did admit to his role in the bombing.146 And he revealed that he and Tamerlan planned to drive to New York City and detonate more of the homemade pressure-cooker bombs in Times Square.147 But this plan was foiled when their carjacking victim escaped and called for help, drawing police to Watertown.148 Tsarnaev termed this a “spontaneous plan” hatched after their grisly success in Boston.149 No lawenforcement official suggested that Tsarnaev gave valuable evidence—or any evidence at all— regarding official links with alQaeda or any other potential terrorist attacks during this time. 140. Id. 141. Ashleigh Banfield, Source: Dzhokhar Tsarnaev Arrived at Hospital ‘Covered in Blood’, CNN (May 1, 2013, 5:35 AM), http://www.cnn.com/2013/04/ 29/us/boston-bomber-hospital-arrival. 142. Id. 143. Richard A. Serrano et al., Miranda Reading Silences Boston Suspect, L.A. TIMES, Apr. 26, 2013, http://articles.latimes.com/2013/apr/26/nation/la-na-bostonbombing-20130426. 144. Id.; see also Glenn Greenwald, Report: Dzhokhar Tsarnaev’s Repeated Requests for a Lawyer Were Ignored, THEGUARDIAN, Apr. 29, 2013, http://www.guardian.co.uk/commentisfree/2013/apr/29/tsarnaev-right-to-counseldenied. This recent report suggests that Tsarnaev repeatedly and unequivocally requested counsel from the earliest stages of his FBI interrogation. Id. If true—and the report is currently unconfirmed—denial to a criminal suspect of one of the most basic constitutional rights would raise even graver concerns than a willful stretching of the public-safety exception. Id. 145. Serrano et al., supra note 143. 146. Id. 147. Id. 148. Id. 149. Id. 468 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 When FBI interrogators learned that the federal magistrate assigned to the case was on the way to conduct Tsarnaev’s initial appearance, they terminated the interrogation and left before the judge arrived.150 The judge personally read Tsarnaev his Miranda rights.151 The interrogators eventually returned, only to find Tsarnaev invoking his Miranda rights and refusing to cooperate.152 Tsarnaev was charged with 30 criminal counts related to the bombing, including the murder of the security officer and the carjacking.153 He is currently awaiting trial where he faces either the death penalty or a life sentence.154 It is uncertain if the evidence against him, apart from the FBI interrogation, will be sufficient to convict him; if the government will attempt to admit all of his statements under the public-safety exception, and if the court will allow it; and even if Tsarnaev, like Shahzad and Abdulmutallab, will simply avoid the foregoing questions and plead guilty. IV. PROSECUTING TERROR: A MILITARY OPTION, A BROAD QUARLES EXCEPTION, OR A NARROW EXCEPTION? A. Military Tribunals Before reaching the question of whether a broad or narrow interpretation is appropriate in terror prosecutions, it is prudent to address a very different option: prosecution by a military tribunal. Several lawmakers and commentators have argued that terrorists— even United States citizens—should be interrogated and prosecuted in precisely this fashion.155 Such simplicity is attractive; under military auspices, there is no requirement for Miranda rights or concern over the bounds of Quarles. And interrogators would be free to question terror suspects indefinitely. But there are two major problems with this viewpoint. First, there is no evidence that the criminal-justice system lacks the required power or flexibility to effectively prosecute terror suspects. Numerous high-profile and infamous terror suspects have been successfully tried and convicted in federal criminal court. Among these include: the Oklahoma City bombers, Timothy 150. 151. 152. 153. 154. 155. Id. Id. Id. Ellement et al., supra note 126. Id. Baker, supra note 11. 2013] PROTECTING THE WORST AMONG US 469 McVeigh and Terry Nichols; the Unabomber, Theodore Kaczynski; and the 1993 World Trade Center bomber, Ramzi Yousef.156 Even after 9/11, the Bush administration, an outspoken proponent of military tribunals, chose to prosecute some of its highest-profile terror suspects through the criminal-justice system.157 And a 2007 study showed that of the 28 federally prosecuted terror suspects whose cases had reached disposition by that time, only 3 were acquitted.158 In comparison, six years after President Bush signed the military order authorizing the employment of military tribunals, only ten detainees were charged and not a single one had been brought to justice.159 This high conviction rate in the criminal-justice system strongly suggests that “[t]he regular criminal justice process in the federal courts has served and can continue to serve as an adequate, efficient, and fair method to bring terrorists to justice,” particularly when compared to the inefficacy of military tribunals.160 And second, the more fundamental question is whether American society is prepared to authorize the per se prosecution of terror suspects by military tribunals. Faisal Shahzad and Dzhokhar Tsarnaev are both naturalized American citizens,161 as many domestic terrorists in the future will likely be. Since United States citizens may not be tried under the Military Commissions Act, pursuing such a course would require far-reaching new legislation that would be contrary to the great weight of American jurisprudence.162 If the criminal-justice system is serving its purpose and the true goal is to see justice done, it is senseless to make a midstream switch to military tribunals, which are unproven at best and unconstitutional at worst. Though it has been considered in the past and will doubtless be raised in the future, using military tribunals for terror prosecutions is an inferior option to interrogating and prosecuting through the criminal-justice system and the Quarles exception. 156. Alberto R. Gonzales, Waging War Within the Constitution, 42 TEX. TECH L. REV. 843, 861 (2010). 157. See id. at 861–62. 158. Hartmann, supra note 11, at 239–40. 159. Kim D. Chanbonpin, Ditching “The Disposal Plan:” Revisiting Miranda in an Age of Terror, 20 ST. THOMAS L. REV. 155, 158 (2008). 160. Id. at 159. 161. Bernstein, supra note 57; Ellement et al., supra note 126. 162. Robert A. Levy, Does the Military Commission Act Apply to U.S. Citizens?, CATO INST. (Oct. 2, 2006, 1:28 PM), http://www.cato.org/blog/does-militarycommission-act-apply-us-citizens. 470 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 B. Broad Public-Safety Exception Generally those favoring a broad interpretation of the publicsafety exception do not suggest that criminal suspects do not deserve Miranda. But they argue that Miranda and the public-safety exception under Quarles “create innumerable challenges to the criminal prosecution of terrorists” and make such prosecutions unreasonably difficult.163 Certainly the public-safety exception grants a degree of flexibility to law enforcement as they pursue legitimate safety concerns.164 And dispensing with Miranda requirements altogether would help law enforcement gather intelligence and prevent future crimes. But the question remains whether this strategy is the wisest course. Proponents of a broad public-safety exception believe that the world has fundamentally changed since Miranda and Quarles. And some argue that this precedent contemplated a kinder, gentler, more innocent time.165 This thinking is persuasive to Americans who still feel threatened by terrorist plots from both foreign enemies and homegrown terrorists. The Shahzad, Abdulmutallab, and Tsarnaev attacks “[demonstrate] that terrorist groups, or even radicalized individuals, will not stop trying to kill United States citizens in dramatic, horrifying ways.”166 And to some, the danger to public safety is a question of scale—when the typical terrorist plot is potentially so much more deadly than a loose gun in a supermarket, practicality insists that the exception expands to a proportionate degree.167 Though persuasive, this thinking does not comport with the law. Beginning with Quarles, the Supreme Court stressed that the publicsafety exception was intended to be narrow.168 And the Court has never stood for the proposition that the existence of an emergency 163. Hartmann, supra note 11, at 239. 164. W ILLIAM E. RINGEL, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS § 26.13 (2d ed. 2013). 165. See Wm. Robert Johnston, Worst Terrorist Strikes in the United States, JOHNSTON’S ARCHIVE, http://www.johnstonsarchive.net/terrorism/wrjp255us.html (last updated May 23, 2013). While admittedly the political and religious elements of terrorism have changed over the last several decades, it would be a disservice to suggest that the Miranda and Quarles Courts were unfamiliar with large-scale terror attacks. By the time those cases were decided, the United States had already witnessed numerous politically, religiously, or racially motivated mass attacks. 166. Petty, supra note 41, at 186. 167. KRIS & W ILSON, supra note 22, at § 24:21. 168. New York v. Quarles, 467 U.S. 649, 658 (1984). 2013] PROTECTING THE WORST AMONG US 471 will allow police to question a suspect in any manner necessary to diffuse whatever danger might exist.169 Later cases established that “[i]t is the character of the questions—related to safety as opposed to investigatory concerns—that is most important under this application of the Quarles public safety exception.”170 Some commentators have even interpreted Quarles and its progeny to mean that the exception “does not extend beyond the moment of arrest,” which is not compatible with a broad approach.171 But ultimately the Supreme Court has the final say.172 Putting the question of legality aside, supporters of a broad exception must still address whether this approach is wise. Would a broad exception result in a wealth of new evidence that would be worth drastically altering or outright removing the constitutional rights of an American citizen? Faisal Shahzad continued cooperating for days after he received (and properly waived) his Miranda rights.173 Umar Farouk Abdulmutallab only received his rights after he stopped cooperating and authorities concluded that they would obtain no further valuable evidence under the exception.174 And in Khalil, use of a broad public-safety exception would have yielded precisely the same results as the narrow one used by law enforcement in the case. It was only after the threat to the police and the public had been dealt with that Abu Mezer discussed his reasons for making the bombs, his idea to plant the explosives on a subway train, and the source of the bombs’ ingredients.175 Even the broadest Quarles exception would have revealed nothing more. Under a broad interpretation, the only factor in the Khalil equation that would 169. See RINGEL, supra note 164. 170. Petty, supra note 41, at 182 (citing United States v. Estrada, 430 F.3d 606, 612 (2d Cir. 2005)). 171. Amos N. Guiora, Relearning Lessons of History: Miranda and Counterterrorism, 71 LA. L. REV. 1147, 1172 (2011). 172. See Dickerson v. United States, 530 U.S. 428 (2000). The Court ruled that a federal statute purporting to overrule or circumvent Miranda was unconstitutional. Id. This case firmly established that Miranda warnings are not merely prophylactic rules, but they are constitutional and ultimately for the Court to rule on. Id. at 437, 444. 173. Richey, supra note 66. 174. Richard A. Serrano & David G. Savage, Officials OKd Miranda Warning for Accused Airline Plotter, L.A. TIMES, Feb. 1, 2010, http://articles.latimes.com/ 2010/feb/01/nation/la-na-terror-miranda1-2010feb01. 175. United States v. Khalil, 214 F.3d 111, 116 (2d Cir. 2000). 472 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 change is the timing (or the presence at all) of Miranda rights. Abu Mezer held nothing back after being Mirandized, and the authorities’ compliance with Miranda endangered no one. In the Boston Bombing case, Dzhokhar Tsarnaev stopped cooperating with interrogators after being Mirandized. But so far the FBI has not revealed any valuable evidence gained from their 16hour, extra-constitutional interview: security cameras already placed both brothers at the scene and authorities found another pressurecooker bomb similar to the ones used at the Boston Marathon in their car;176 eyewitnesses tied them to the carjacking and shootout with police;177 and the FBI obtained online proof that Tsarnaev purchased explosives and had an affinity for al-Qaeda and jihad.178 The only new information obtained was the brothers’ second spontaneous plot to travel to Times Square.179 But given that it involved only Dzhokhar, who was in intensive care, and Tamerlan, who was dead, this information was moot. Even the bounds of a broad public-safety exception were probably exceeded well before the 16-hour mark. And Tsarnaev no longer posed even a minimal threat to public safety. The broad approach did not result in any additional public-safety evidence in the Boston Bombing case, and it is doubtful that the small amount of actionable evidence it would produce in the future is worth the erosion of constitutional rights. C. Narrow Public-Safety Exception The most sensible course is a narrow reading of the public-safety exception; one that comports with the Court’s intentions in Miranda and Quarles, squares with the existing approaches of five federal circuits, and guarantees similar results as a broad approach. The narrow approach’s scope is “circumscribed by the exigency which justifies it”180 and recognizes that “public safety questioning is at the extreme end of lawful interrogation.”181 Such a narrow approach— one that includes an objective and immediate threat, along with interrogator questions narrowly tailored to respond to that threat— 176. 177. 178. 179. 180. 181. Serrano et al., supra note 143. See id. Lavoie & Hays, supra note 127. See supra text accompanying notes 146–49. New York v. Quarles, 467 U.S. 649, 658 (1984). Petty, supra note 41, at 198. 2013] PROTECTING THE WORST AMONG US 473 was applied in Khalil.182 There, the pipe bombs in the duffel bag coupled with Abu Mezer and Khalil’s aggressive actions toward the police presented an objective and immediate threat.183 And police questioning before Miranda was narrowly tailored to address that threat, with investigators returning later to seek statements of a more testimonial nature.184 This provided law enforcement with every detail needed to neutralize any further threats posed by Abu Mezer and Khalil and successfully prosecute the pair. Complying with Miranda and using the narrow reading of the Quarles exception fostered an aura of legitimacy and stability to the proceedings that would have been absent under a broad exception. More than any other case, Khalil illustrates that courts are extremely willing to apply the exception in domestic terror cases, particularly when authorities suspect the use of explosives. But the evidence for this is more than just anecdotal. Studies have shown that both federal and state courts allow suspects’ statements under the exception in an overwhelming 89% of cases involving bombs or other explosive devices.185 This indicates that courts are unlikely to question law enforcement’s use of the public-safety exception in cases where danger to the public is particularly grave, like Khalil and the Boston Bombing. The FBI could have easily employed such a circumscribed, narrow approach in the Tsarnaev interrogation. With one deadly bombing under his belt, another explosive device found in his car,186 numerous links to al-Qaeda material on his computer,187 and a demonstrated propensity for extreme aggression against both the police and the public in general,188 agents were right to be concerned about an immediate threat to public safety. But given his lack of material ties to al-Qaeda, the small probability of additional threats, and the complete neutralization of both Tsarnaev brothers, those legitimate concerns could have been quickly addressed.189 Continuing to interrogate him for hours could potentially produce 182. 183. 184. 185. 186. 187. 188. 189. Id. See United States v. Khalil, 214 F.3d 111, 115 (2d Cir. 2000). Id. at 115–16. See e.g., Wright, supra note 45, at 1320. Levs & Plott, supra note 8. Abel et al., supra note 8. See id. See id. 474 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 testimonial rather than investigative evidence, as expressly forbidden by Quarles and every other public-safety-exception case thus far.190 A narrowly drawn exception would also best reflect American values. As a nation of laws, the United States prizes fairness and predictability. Much like Miranda, a narrow approach would have “positive effects for suspected criminals and for law enforcement by adding predictability and confidence that confessions will pass constitutional muster.”191 And as the Miranda majority recognized, the United States is a society that values upholding individuals’ constitutional rights over social costs.192 Responding to terror attacks by suspending, loosening, or removing these constitutional rights would be an “erosion of civil liberties akin to the counter-terror and interrogation policies that were widely condemned in the previous [Bush] administration.”193 In fact, commentators have suggested that sacrificing constitutional liberties for security concerns may be more dangerous.194 Continuing to dilute constitutional liberties in the face of terror threats sends a dangerous message to budding terrorists— neither death to the enemy, nor to themselves is necessary to achieve success. It now appears that so long as they attempt to harm Americans, the resulting atmosphere of alarm may cause a governmental backlash of restricting laws, thereby causing all Americans to suffer, albeit indirectly. If America continues to overreact in this manner, the number of attempted terrorist attacks could increase, creating demand for the enactment of more oppressive laws to 190. See New York v. Quarles, 467 U.S. 649, 658–59, 667–68 (1984) (O’Connor, J., concurring in part and dissenting in part). 191. Petty, supra note 41, at 188. 192. See Miranda v. Arizona, 384 U.S. 436, 479 (1966). The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged. Id. 193. Petty, supra note 41, at 185. 194. Stephen Holmes, In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror, 97 CALIF. L. REV. 301, 349–50 (2009) (discussing the necessity of maintaining a presumption of innocence even in terrorist scenarios). 2013] PROTECTING THE WORST AMONG US 475 fight this increase in terrorism, which in turn would beget more terrorist attacks.195 As a practical matter, law enforcement’s hands are not tied even in those unlikely cases presenting a stark, concrete choice between protecting the public and eliciting and using un-Mirandized statements. Justice Marshall provided a clear answer to this conundrum in his dissenting opinion in Quarles: protect the public and ask away. Justice Marshall wrote: [t]he public’s safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. . . . [N]othing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. 196 Justice Marshall recognized that the cases in which law enforcement has nothing but a suspect’s coerced and un-Mirandized statements are rare and possibly unheard of. But in such cases, law enforcement could still protect the public by using those statements. And the criminal-justice system could still prosecute using a wealth of other evidence against the suspect discovered before trial. Assuming there was a credible threat involved in the Tsarnaev interrogation, he could be effectively prosecuted without any of the resulting coerced statements. Finally, the narrowly applied public-safety exception has never resulted in death or injury to the public or to a police officer. Even under a narrow exception, interrogators could conceivably question terror suspects for days on end, so long as there was an objective and immediate threat and the interrogator did not shift the questioning from seeking investigative to testimonial evidence. Rather than hindering law enforcement, this provides a clear and simple formula: question without Miranda until public or officer safety is no longer at issue, and then return to standard Miranda procedure and inform the suspect of his or her constitutional rights. This principle should apply 195. Ryan T. Williams, Stop Taking the Bait: Diluting the Miranda Doctrine Does Not Make America Safer from Terrorism, 56 LOY. L. REV. 907, 954 (2010). 196. New York v. Quarles, 467 U.S. 649, 686 (1984) (emphasis added). 476 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 whether the exigency at hand is a gun thrown aside by a fleeing suspect or a ticking time bomb in a public place; a narrow exception allows for the neutralization of both while still preserving the rights of citizens. Admittedly, there are potential social costs to this approach as there always are when individual constitutional rights take precedence over law-enforcement officials’ need to investigate and prosecute crime.197 It is possible that the unwillingness to change the constitutional landscape to fight terrorism more aggressively may be interpreted as a sign of socio-political weakness, encouraging more terrorists to attack an easy target. But in the post-9/11 era, the motivation for terrorism appears to be foreign policy—not any perception of the United States as weak or unwilling to prosecute.198 And a just and predictable system resulting in fair convictions for terrorists is perhaps the greatest symbol of national strength.199 But employing a narrow approach could result in decreased suspect cooperation, which happened after Tsarnaev was Mirandized.200 While this is a legitimate fear, recall that over 80% of Mirandized suspects waived their rights201 (including Faisal Shahzad)202 and that Miranda rights would not be necessary until the public-safety emergency is neutralized. But the most compelling policy reason for employing a narrow approach to the public-safety exception is that it coincides with societal values and allows for prosecuting terror suspects—without fundamentally changing American jurisprudence. Changing laws and constitutional liberties to acknowledge terror gives those who use it more power than a bomb or a gun and more lasting historical and political impact. 197. But see Miranda, 384 U.S. at 481. “The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions.” Id. 198. See Elliott, supra note 59; Ashenfelter & Baldas, supra note 73; Lavoie & Hays, supra note 127. 199. On a domestic level, level-headed lawmakers calling for intelligence, moderation, and adherence to existing law in terror investigations risk electoral defeat at the hands of opponents categorizing them as weak or unwilling to fight terror. This topic, however, is beyond the scope of this Comment. 200. Serrano et al., supra note 143. 201. Cassell & Hayman, supra note 21, at 859. 202. Richey, supra note 66. 2013] PROTECTING THE WORST AMONG US 477 A broad public-safety exception, or one in which the traditional constitutional guidelines are suspended merely by a terrorism-related offense, could have serious domestic consequences. It would give law enforcement “incentive to categorize offenses as terrorism related in order to get around Miranda warnings,”203 and one “based on the inherent dangerousness of the situation could well render Miranda rights meaningless . . . .”204 Discarding or mangling Miranda rights and the narrow public-safety exception of Quarles is not worth the social cost of losing some of the constitutional rights Americans hold most dear. V. CONCLUSION A narrow application of the public-safety exception provides sufficient protection against domestic terror attacks. A less restrictive reading threatens vital constitutional rights and would provide little, if any, practical benefit to offset the loss of those rights. Employing military tribunals to prosecute terror suspects is an even less useful solution given the federal criminal system’s high success rate, the complete lack of effective terror prosecutions by military tribunals thus far, and the non-existent legal basis for trying American citizens in such a fashion. Instead the best course is to allow law enforcement to use the exception as circumstances warrant, but only “where there are sufficient indicia supporting an objectively reasonable need to protect the police or the public from immediate harm.”205 Applying the Quarles exception narrowly to the Boston Bombing case would have led to an identical result—a full interrogation about possible additional plots and explosive devices and a complete preservation of public safety—without the constitutional concerns raised by a criminal suspect’s 16-hour, non-Mirandized FBI interrogation. And a narrow exception would continue to work effectively in future terror investigations. As long as an objective threat to the public exists, law enforcement can interrogate without Miranda warnings, effectively safeguarding American lives and preventing a suspect from invoking his or her rights; after that point, a suspect would be treated just like any other criminal. 203. Petty, supra note 41, at 197. 204. Elizabeth Nielsen, The Quarles Public Safety Exception in Terrorism Cases: Reviving the Marshall Dissent, 7 CRIM. L. BRIEF 19, 30–31 (2012). 205. United States v. Estrada, 430 F.3d 606, 614 (2d Cir. 2005). 478 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 Because terror attacks create public panic, the backlash against any sort of “special treatment” for this most unsympathetic of criminal suspects makes attempts to redefine the public-safety exception understandable. But in such tragic circumstances it is vital to preserve the constitutional protections enjoyed by all Americans and to strive for justice for even the worst among us. It is prudent to consider the words of Justice Brandeis in Olmstead v. United States206—words nearly a century old that were employed by the majority in Miranda and have lost none of their potency or relevance in spite of the intervening decades: In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.207 This sentiment is no less true today than when the words were written in 1928 or when the Miranda majority cited them in 1966. This is a nation of laws, and it has consistently and unequivocally stated that those laws accord the citizens’ constitutional rights greater weight than law enforcement’s momentary needs. To abandon that principle now in reaction to the domestic terror attacks that threaten contemporary America is not only inconsistent but unwise. Doing so would diminish the United States and its Constitution. Worse, it would allow terrorists to change the nation forever, and not for the better. It is precisely for these reasons that the United States must adhere to a narrow application of the Quarles public-safety exception in terror cases—one which protects the public effectively while still granting constitutional protections to those who seem to deserve them least. 206. 277 U.S. 438 (1928). 207. Id. at 485 (Brandeis, J., dissenting); Miranda v. Arizona, 384 U.S. 436, 480 (1966). 2013] PROTECTING THE WORST AMONG US 479 CHRISTOPHER R. SCHAEDIG* * Christopher Schaedig is a third-year student at Thomas M. Cooley Law School in Ann Arbor, graduating in September 2014. He wishes to thank Rebecca Sand-Schaedig for continually inspiring him to greater heights. He would also like to thank Professor Jamie Baker for her invaluable guidance in writing this Comment.