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
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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).
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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
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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
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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.
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PROTECTING THE WORST AMONG US
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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
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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.
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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
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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.
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PROTECTING THE WORST AMONG US
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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.
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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.
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PROTECTING THE WORST AMONG US
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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.
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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.
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PROTECTING THE WORST AMONG US
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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/
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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.
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PROTECTING THE WORST AMONG US
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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.
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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.
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PROTECTING THE WORST AMONG US
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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
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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).
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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).
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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.
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PROTECTING THE WORST AMONG US
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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.
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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).
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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).
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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.
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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).
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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).
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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.