Strange Bedfellows: How Expanding the Public Safety Exception to Miranda Benefits Counterterrorism Suspects

When should a suspected terrorist receive Miranda warnings, and should confessions obtained without obtaining a waiver of the Miranda right to silence and assistance of counsel be admissible at trial? The answer to this question turns on the scope of what is known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement. Established by the Supreme Court in 1984 in New York v. Quarles, the exception allows the use of confessions obtained from suspects questioned after being placed in custody (the situation that triggers the Miranda warning and waiver requirement) when the questions respond to an imminent threat of danger to the officer or the public. Implicit in the rationale for the PSE is that failing to advise a suspect questioned in a custodial setting of his or her Miranda rights may result in the government’s foregoing the opportunity to incapacitate the individual. The Quarles Court adopted an exception that eliminated the requirement that officers responding in such situations choose between protecting themselves and the public or risk the inadmissibility of potentially vital evidence: the suspect’s voluntary confession. This Article questions whether this binary choice is still valid. More specifically, it asserts that when dealing with a terror suspect, the alternative “remedies” of indefinite detention and trial by military commission fundamentally alter this equation. This alternative option for incapacitating a suspected terrorist operative may, in certain situations (potentially even involving a U.S. citizen), eliminate the binary “warn and risk imminent danger, or don’t warn and risk the ability to prosecute” choice equation that was central to the Quarles decision. As a result, the burden of risk associated with a narrow application of the PSE has substantially shifted to the terrorism suspect, because the military detention option allows the government to question in violation of the Miranda warning and waiver requirement without risking the ability to incapacitate the suspect, even if the confession is inadmissible in an Article III court. Accordingly, this Article argues that expanding the scope of the PSE to allow for more extensive interrogation of terrorism suspects will inure to the suspects’ benefit by incentivizing the normal law enforcement disposition for suspected terrorist suspects, and thereby mitigating the likelihood that such suspects will be subjected to military administrative detention.