As everyone knows, a car bomb was recently found, and defused, in New York City. The New York Times summarizes the basic facts as follows:
A crude car bomb made from gasoline, propane, firecrackers and alarm clocks was discovered in a smoking Nissan Pathfinder in the heart of Times Square on May 1, 2010, prompting the evacuation of thousands of tourists and theatergoers on a warm and busy night. Although the device had apparently started to detonate, there was no explosion. Just before midnight on May 3 — 53 hours later — a naturalized U.S. citizen from Pakistan, Faisal Shahzad, was pulled from a Dubai-bound airliner at John F. Kennedy International Airport and arrested in connection with the incident.
For criminal lawyers, an interesting part of the story concerns what happened after Mr. Shahzad’s arrest. Again, the New York Times reports:
[Shahzad] was interrogated without initially being read his Miranda rights under a public safety exception, and provided what the F.B.I. called “valuable intelligence and evidence.”
The Times states that Mr. Shahzad was detained for “three or four hours” before being Mirandized. It appears that he continued to talk even after being read his rights.
The case has reignited a debate about whether terrorism suspects should be given Miranda rights at all. This issue first made news in connection with the Christmas Day underwear bomber. Reports suggest that he provided some information in pre-Miranda interviews, but after a break in the interrogation, a change in interrogators, and the administration of Miranda warnings, stopped cooperating. Several weeks later, he seems to have decided that he would provide information to investigators after all.
In the wake of these cases, some have argued that terrorism suspects are more likely to clam up once they are Mirandized, and that it is more important to maximize the chances of extracting information than it is to provide Miranda warnings. Yesterday, apparently in response to these criticisms, Attorney General Eric Holder said that Congress should act to limit the application of Miranda in terrorism cases. The details of the administration’s proposal aren’t clear — to me, at least — but the Attorney General outlined it in this way:
If we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception. And that’s one of the things that I think we’re going to be reaching out to Congress to do: to come up with a proposal that is both constitutional but that is also relevant to our time and the threat that we now face.
The extent to which Congress can determine the scope of Miranda is an obvious concern with this approach. (It’s discussed in some detail here.) But even if Congress has a role to play, the details of any legislation strike me as tricky. Will there be different rules for non-citizens like the underwear bomber than for citizens like Mr. Shahzad? How should an investigator proceed in a case where the act in question could be one of terrorism, but could also be motivated by something else? And if Miranda warnings are not given in terrorism cases, does that mean that those cases should be tried in military tribunals rather than civilian courts?
Perhaps none of these are insuperable barriers. But tomorrow, I’ll focus on how Miranda warnings are being delayed now in these cases, i.e., the public safety exception. That’s a topic that is relevant to terrorism cases but also to many, many others.