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Experts: Obama Admin Pioneering Robust Use Of Miranda Exception In Terrorism Cases

Justin Elliott

WASHINGTON - The Obama Administration is applying an old exception to the Miranda
rule in a new way in order to interrogate terrorism suspects before
reading them their rights, several experts tell TPMmuckraker, finding
what one law professor calls a "middle ground" between those who want
suspects put through the criminal justice system and those who believe
they should be classified as "enemy combatants."

Federal agents questioned both Faisal Shahzad, the man accused of
planting a makeshift bomb in Times Square, and Umar Abdulmutallab, the
failed Christmas Day bomber, under the so-called public safety
exception to the Miranda rule for substantial periods before informing
the men of their right to remain silent, and to an attorney.

Information gleaned during questioning under the public safety
exception -- in which police "ask questions reasonably prompted by a
concern for the public safety," according to the 1984 Supreme Court
case that recognized the exception -- is admissible at trial.

"It looks like to me they're trying to find this middle ground
between saying the Constitution applies with full force and the
Constitution doesn't apply," says Sam Kamin, a professor of criminal
law and procedure at Sturm College of Law in Denver who has written
about terrorism interrogations. "It seems to be a deliberate strategy."

Asked about the use of the public safety exception, a federal law
enforcement official tells TPMmuckraker: "There has been no change in
the long-standing law on Miranda or in the FBI's current policy
governing use of Miranda, which was issued during the prior

None of several experts on Miranda interviewed by TPMmuckraker knew
of publicly reported use of the public safety exception in a terrorism
case during the Bush years, a fact supported by a Nexis search. And
they say the length of the pre-Miranda interrogations in the two recent
cases -- 50 minutes and a few hours respectively -- also appears to
break new ground.

The expanded use of the exception isn't likely to quell GOP criticism of the Obama Administration over Miranda; it has continued
apace despite the fact that Shahzad kept talking after he was read his
rights. But the new tack could raise the hackles of civil libertarians
worried about the erosion of Miranda.

At a Senate hearing Thursday, Attorney General Eric Holder addressed
the use of the exception in an exchange with Sen. Diane Feinstein (D-CA)

"There are exceptions to Miranda and that is one of the ways in
which we conduct our interrogations of terrorism suspects, it's what we
did with Abdulmutallab, it's what we did with Shahzad," Holder said.
(See video below)

As Holder went on to note, the Supreme Court, which recognized the public safety exception in the 1984 Quarles case, has never laid out how long questioning can last under the exception.

But, says Todd Foster, a criminal Tampa defense attorney and former
FBI agent and federal prosecutor, "you're typically looking at
something that's done at the instance of arrest for a very short period
of time -- just a couple of questions: 'Where's the gun?' 'Do you have
anything sharp in your pocket?' Not like, 'Let's go through your pawn
shop receipts for the last weeks.'"

In the Quarles case, for example, a woman told officers she
had been raped and the assailant fled with a gun to a grocery store.
One officer caught the man in the store, and, after noticing an empty
holster, asked him where the gun was before reading him the
Miranda warning. The suspect said he had hidden the weapon behind some
empty cartons. The use of that statement at trial was challenged, but
it was ultimately allowed by the Supreme Court.

In the Christmas case, agents questioned Abdulmutallab in his
hospital room under the public safety exception for 50 minutes,
beginning several hours after he was apprehended around noon in
Detroit. He was ultimately read his rights about five hours later,
after going through surgery, the AP reported.

"Useful, valuable intelligence was gained in that one hour," Holder
said Thursday. "A lot of people have said, you only spoke to him for
about an hour -- they say, 50 minutes -- without recognizing that in
that period of time qualified, experienced FBI agents can elicit really
substantial amounts of information."

In the Times Square case, the period of interrogation under the
public safety exception "far exceeded" 50 minutes, Holder said. (Citing
unnamed officials, the Los Angeles Times puts it at three or four hours.)

The federal law enforcement official tells TPMmuckraker that after
the initial Shahzad interrogation, which lasted from late Monday night
into early Tuesday morning, "he was eventually transported to another
location, where he was provided with his Miranda warning, which he

Several law professors tell TPMmuckraker that such lengthy interrogations may stretch the bounds of the exception.

"They're extending it, they're pushing the outer limits," says Foster.

Kamin, the Denver law professor, says a civil libertarian critic
might see it as "using Miranda to clean up a confession." And Brian
Levin, professor of criminal justice at California State University,
says "it's a loophole that can really absorb the rule."

Indeed, at the time of the Abdulmutallab case, the AP reported
that after the 50-minute interrogation under the public safety
exception, federal officials were worried that they may have
overstepped their bounds and dispatched a "clean team" to read him the
Miranda warning and begin anew:

By that time, FBI bosses in Washington had decided a new
interrogation team was needed. They made that move in case the lack of
a Miranda warning or the suspect's medical condition at the time of the
earlier conversations posed legal problems later on for prosecutors.

Here's Holder discussing the exception Thursday:


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