The arrests of terrorism suspects Faisal Shahzad in New York this week and of Umar Farouk Abdulmutallab last Christmas in Detroit have prompted a good deal of confusion about what “rights” a person has.
There is no “constitutional right” to be given Miranda warnings. In fact, a person who has been arrested has no “constitutional right” to be given Miranda warnings even before he or she is questioned by the police.
What the U.S. Supreme Court said in Miranda v. Arizona, and has repeated many times, is this: A statement made by a defendant in response to custodial interrogation cannot be used in evidence to prove guilt unless, before being questioned, the defendant was given Miranda warnings and knowingly waived the rights contained in those warnings.
The Supreme Court has also recognized a number of exceptions to the Miranda rule, including the “public safety” exception. That exception arises when the police have arrested someone and there is good reason to believe that the suspect has information needed to protect the public from some immediate danger. In that case, the police may question without Miranda warnings to find out what they need to protect the public, and what the defendant says may be used in evidence against him. Once the immediate danger has been averted, if the police want to continue to question the suspect and use those statements as evidence of his guilt, they must first give Miranda warnings.
Even when there is no immediate emergency, if police or national security officials want to question a suspect, they are under no obligation to ever give that suspect Miranda warnings. But if they do not give the warnings, the suspect’s statements cannot be used as evidence of guilt at trial. And even if the police later give Miranda warnings and the suspect agrees to answer questions, those initial “non-Mirandized” statements may “taint” the subsequent statements and prevent their use in evidence.
There is a constitutional right not to be coerced into confessing. That means the police cannot torture a person into confessing or threaten to frame a suspect’s spouse if a confession is not offered, and so on. But there is no “constitutional right” to Miranda warnings.
When a terrorism suspect is arrested, the interrogators will have several goals. First, avert any additional, immediate threat. Second, obtain as much other information about terrorism as possible — Who helped you? Who trained you? — and so on. Third, obtain statements that can be used against the suspect at trial. The first two are obviously more important than the third, but the best result is to achieve all three. A skilled interrogator has the ability to “read” the suspect. “He’s talked to me so far; he seems eager to tell me how ‘important’ or brave he is or how much he knows. If I give him the warnings, he’ll still be willing, even eager, to keep answering my questions.”
If that is what happened last Christmas in Detroit with Abdulmutallab, or this week in New York with Shahzad, then the officials involved should be praised, not criticized, for what they did and how they did it.
Clifford S. Fishman is a professor at the Catholic University of America Columbus School of Law.