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September 20, 2016

Miranda Rule Doesn’t Hamper Terrorism Investigations

By Kevin Meister

Yesterday police took 28-year-old New York City bombing suspect Ahmad Khan Rahami into custody after a shootout in Linden, New Jersey. He is suspected of orchestrating Saturday's blast that injured 29 people in New York City and an explosion that occurred near a charity race in Seaside Park, New Jersey, earlier that day. It remains unclear whether he acted alone or with assistance and training from others. What is clear, however, is that there is no need to hold him as an “enemy combatant” in order to gather intelligence from him, as Senator Lindsey Graham (R-SC) has urged.

Law enforcement officers already have the tools they need to interrogate criminal suspects to gather information to protect national security. Many have pointed to the Miranda rule, established in 1966 by the Supreme Court to ensure that suspects are aware of their constitutional rights, as an impediment to information gathering. The Miranda rule declares that statements are only admissible as evidence in a future prosecution if a suspect has been informed of his or her right to remain silent and to be represented by an attorney.

But there is an exception to this rule: when there is an imminent threat to the public, such as fear of another bomb, interrogators may question the suspect in an effort to secure the situation before notifying the suspect of his Miranda rights and still use such statements in a future prosecution. This public safety exception was used, for example, in the questioning of the Boston Marathon bomber Dzhokhar Tsarnaev in 2013. Tsarnaev was initially interrogated for 16 hours before receiving his Miranda rights.

But more importantly, investigators can and do continue to question suspects after reading them their Miranda rights—and many suspects keep right on talking. As former Attorney General Eric Holder has noted, there is no evidence that Miranda warnings prevent the gathering of useful information. And those who would know agree. Former FBI agents who have interrogated terrorists have noted, “In 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.” 

Federal prosecutors and investigators have navigated these waters before, successfully completing over 500 terrorism cases since 9/11. As former federal prosecutor David Laufman explained back in 2013, “Both before and since the terrorist attacks of September 11, 2001, the American criminal justice system consistently has proven to be a successful forum for the investigation and prosecution of terrorism offenses. The government is adept at balancing the need to obtain intelligence information with the imperatives of the Constitution, and the notion that Miranda has been an impediment in that endeavor is belied by the historical record.”

As tough as it might sound to say Rahami should be interrogated as an enemy combatant, tough talk is all it is.