Miranda Rights May Be Limited In Terror Cases

Attorney General Eric Holder wants the Obama administration to work with Congress on possible limitations to the Miranda rights given to terrorism suspects, even for U.S. citizens. Sharon Bradford Franklin of the Constitution Project explains the potential changes.

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NEAL CONAN, host:

After the arrest of Faisal Shahzad, the Times Square bomb suspect, authorities advised him of his rights: The right to remain silent, the right to be represented by counsel. Standard procedure since the Supreme Court decision in the famous Miranda case.

Controversy ensued, as it did after the arrest of the man who allegedly tried to blow up a plane over Detroit on Christmas Day. There are some things investigators may want to know urgently. Are there accomplices who might be trying to destroy other planes? Are there others cars set to explode?

Sunday, on NBC's "Meet The Press," Attorney General Eric Holder noted there is an exception under Miranda drawn up to address concerns of the 1990s, but that the Obama administration would like to change that to address the age of terrorism.

Attorney General ERIC HOLDER (Department of Justice): The public safety concerns that we now have in the 21st century, as opposed to the public safety concerns we had, we want to work with Congress to come up with a way in which we make our public safety exception more flexible and, again, more consistent.

CONAN: And that's Attorney General Eric Holder on NBC's "Meet The Press." Should we relax the Miranda rule? 800-989-8255. Email us: talk@npr.org. You can also join the conversation at our website. That's at npr.org, click on TALK OF THE NATION.

Sharon Bradford Franklin joins us here in Studio 3A. She's senior counsel at the Constitution Project. Nice to have you with us today.

Ms. SHARON BRADFORD FRANKLIN (Senior Counsel, The Constitution Project): Thank you.

CONAN: And just to clarify, what is the exception that currently exists under the Miranda rule?

Ms. FRANKLIN: Well, the Miranda rule currently recognizes a public safety exception. If the law enforcement agents have reasonable cause to believe that the suspect has information that might reduce a substantial threat, they can wait to give the Miranda rights.

And in fact, we know that in this most recent case with the Times Square attempted bombing, they relied on that exception and waited for some period of time before they did give him his Miranda rights. And then after they gave him his Miranda rights, he in fact kept talking to the investigators and continued to cooperate with them.

CONAN: And what kind of flexibility, as you understand it, might the attorney general be talking about here?

Ms. FRANKLIN: I'm really confused by this proposal. We have an existing exception. We know theyve relied upon it, we know that this particular suspect continued to talk. So I'm very unclear as to why the attorney general thinks we may need additional flexibility. We believe the law recognizes all the flexibility that is necessary. And the Miranda holding was actually grounded in the Constitution, in one's Fifth Amendment right against self-incrimination. So there is a constitutional basis to this protection and the exceptions really are already recognized.

CONAN: Would the public safety exception drawn up in the days when this is the primary concern as I understand it was kidnapping and that sort of thing. Does that apply to situations that we're in today where, indeed, we're talking about the ticking time bomb scenario?

Ms. FRANKLIN: Absolutely. It has been relied upon - it was - in this very case. And the types of language that the courts use, you know, reasonable grounds to believe the suspect has information that might reduce a substantial threat, really can be adapted to what the circumstances may be so that investigators can rely on that.

CONAN: And can investigators then turn around and use that information, not simply to find out if there's another plane about to be blown up or another car bomb to go off, but use that information later in court against the suspect?

Ms. FRANKLIN: As long as they comply with the actual recognized terms of the exception, absolutely. And there's a concern that if that were broadened too much so that it really were starting to impinge on Fifth Amendment rights against self-incrimination, then there would be that risk that investigators could not then use those statements in court for a prosecution. Of course, investigators could continue to question if they deemed that it was more important to continue questioning, you know, as long as they wanted to. But at some point, if they cross over the line against the protection against self-incrimination, they couldn't use that in court.

CONAN: And Attorney General Holder is talking about some relaxation of the current rules, something that he said he wants to work with Congress about. Maybe we'll get further clarification when he makes an actual proposal. There is a proposal in Congress, though. This is Senator Joe Lieberman, the independent from Connecticut, who says he wants to go much further and have the capability of stripping terror suspects of their citizenship rights, which would then presumably preclude any Miranda problems at all.

Ms. FRANKLIN: That's right. Senators Lieberman and Brown, and then in the House, Representatives Altmire and Dent, introduced a bill called the Terrorist Expatriation Act. And this bill would try and amend an existing law that outlines the circumstances under which we recognize that someone has lost his or her citizenship.

And the current law includes two basic categories, one are actions where we would presume that indicates somebody wanted to give up their citizenship like fighting in the army of another country against United States. And the second category is offenses such as treason or conspiracy to overthrow the government. But that category requires an actual conviction, criminal conviction in court before that can be the predicate.

And this new bill seeks to add another category which would say that another ground would be that someone has provided material support to a group that's designated as a foreign terrorist organization, and it incorporates the language from our existing laws prohibiting material support for terrorism. And this bill, we think, raises a variety of constitutional problems.

CONAN: Well, what would be the practical effect of it? Taken, for example, the case of the man in New York who is, after all, an American citizen, a naturalized American

Ms. FRANKLIN: Well, I think part of the motive is that recognition that Americans citizens cannot actually be tried in military commissions, although this Constitution Project and many other advocacy groups have pointed out, our federal courts and prosecutions in our federal courts actually more effective for handling the terrorism prosecutions.

But based on a number of Supreme Courts holdings and the constitutional flaws in this bill, hopefully and ultimately it would have no effect because you really cannot - the Supreme court recognized back in 1967 in the Afroyim case, you cannot strip someone's citizenship. Someone can only lose citizenship if they voluntarily renounce it. And in a subsequent 1980 decision coming out at the Supreme Court, the court held that to sort of cure statute, or how we must read the statute, the government must prove that someone engaged in one of these acts voluntarily and separately prove that the they did so with the intention of renouncing their citizenship.

CONAN: To prove and prove, in other words, in court.

Ms. FRANKLIN: That's correct. Well, but just to make clear. Actually, there's an administrative process. Initially this statute is enforced by the State Department. So one of the risks of this bill is that a State Department official might seek to start this process in motion, but ultimately there would be court review, yes.

CONAN: Let's get some listeners involved in the conversation. My number is 800-989 -8255. Email us: talk@npr.org. Let's start with Bob(ph), Bob calling us in Durham, North Carolina. Bob, you're in the air.

CONAN: Bob, still listening to you on air. We'll put Bob on hold and maybe he'll come back as soon as he realizes what he has done. Let's go to -Mark(ph), and Mark is in Arlington, Massachusetts.

MARK: Hello?

CONAN: Hi, Mark, you're in the air.

MARK (Caller): It seems to be that every time there is exemption made to some basic Constitutional right, the authorities tend to try and re-characterize everything they deal with as qualifying under that exception. And so the end result is that allowing even a small exception amounts, pretty much, to taking a chisel to, you know, to the Bill of Rights and chipping away major portions of it.

CONAN: Miranda, derived from the Bill of Rights, but not actually in it. But in any case, you would apply that same logic to the public safety exception that we talked about earlier, Mark?

MARK: I think I would, because, you know, I've seen this - I mean, yes, public safety is critical, it's absolutely important. But as soon as the authorities come along and start saying, well, you were driving erratically, that's a public safety, you know...

CONAN: I'm not sure that that's the way they would apply it or...

MARK: Okay. I'm exaggerating a bit. But the fact of the matter is, there's a great temptation, when you're in any position, to take whatever rules where given and stretch them as far as possible.

CONAN: And there, Mark may have a point. Sharon Bradford Franklin, has there been - has this been a contested area of the law since the public safety exception was approved?

Ms. FRANKLIN: Well, there's a lot of litigation on this point. Just a response to the caller's point, though, I would point out that this public safety exception is based on a time sensitivity - that there is a fear that something else might happen, the next bomb might go off. And so the exception is based on the need to question this suspect that he might know of another bomb that was planted somewhere else and to get that information immediately. So it's a little bit more cabined.

CONAN: And the fear that if advised of his right to an attorney - and most attorneys would immediately tell their clients to not say anything.

Ms. FRANKLIN: That's correct, although as we know from this very case once this individual suspect did indeed get read his Miranda rights, he still continued to talk and cooperate.

CONAN: And some do, but nevertheless. Let's go to Bob, see if Bob's back on line from Durham, North Carolina.

BOB (Caller): Yes, I do feel that we should relax the Miranda rights because we are definitely in a war, and it's a very different war, and it's a war with terror with a group of people that don't fight by standard means. I think that we need to also change our laws that allow us to treat U.S. citizens that act against the country more as traitors. And that's my comments, and I take any information you want to say about that off the air.

CONAN: Okay, thank you, Bob. And Sharon Bradford Franklin, would this conversation have a different tenor, had that car bomb gone off on West 45th Street?

Ms. FRANKLIN: Well, there'd be more panic, I imagine, but we hope that we will still continue to follow our system. And I think our system does have the rules in place that can work in both of these situations.

We know that Miranda rights really deal with whether somebody can be prosecuted later. Certainly if there is no desire to have a criminal prosecution later, there's no restrictions there. And in terms of the comment about traitors, our law already certainly provides for prosecution for treason, for any other types of offences. And if you prove that somebody engaged in one of these acts, with an intent to renounce their citizenship and abandon their role as American, then that would recognize that they weren't a citizen anymore as well.

CONAN: But there are some people who are concerned - and you're talking about procedures that can take months, if not years, to establish in a court of law in terms of convictions for things like treachery and - or treason, I think, is what we're talking about. But if you go back to the time urgent situation, there are concerns that these - providing people with attorneys who will advise them, often, not to say anything, not to say that they don't continue to cooperate - in some cases, they do - but maybe in some other cases they won't, and that's the concern.

Ms. FRANKLIN: Well, I have to say, you know, Miranda has stood the test of time for over 40 years. This - the cases that are before us now don't really, in my mind, or Constitution Project's mind, demonstrate any kind of compelling reason for a new exception. We have exceptions that seem to be working. And we would hope that the law enforcement would continue to rely on them when they're appropriate.

CONAN: We're discussing Miranda and terrorism. You're listening to TALK OF THE NATION from NPR News. And here's an email question from Gabriel(ph) in Wichita Falls in Kansas. No, I did not join the military so the Constitution could be gutted. Every time we strip a bit of the Bill of Rights away, the terrorists win another small battle. If we don't stand up for America then there isn't any point in fighting the terrorists in the first place.

And this from Allen(ph) in Concord, California. Is the implication that reading the Miranda rights is an incantation which by virtue of its pronouncement grants those rights? Or are they, in fact, rights, which we all have and are merely being informed of?

Ms. FRANKLIN: I would say the latter. We have those rights. We're being informed of them. And I should mention, in response to an earlier call, Miranda rights apply to anyone in this country, in U.S. custody - this is a domestic case. It doesn't matter whether you're a citizen or not. And, yes, these are rights. It's just a matter of recognizing when somebody needs to be advised with them or when the exigencies of the matter before the police require them to make sure that there's not another bomb that's going to go off and question somebody without Miranda being read yet.

CONAN: And if they don't speak English, you have to make sure that they do understand what they're being told.

Ms. FRANKLIN: That's correct.

CONAN: All right. Next to go Will(ph), Will on the line with us from Wichita.

WILL (Caller): Yeah. Thanks for taking my call. I'm winding down my first year law school at Washburn in Topeka. But my understanding of the Miranda decision is more or less, you know, that exception already exists for public safety. And I wouldn't think that it would need to be relaxed any from its current form, and that it's perfectly legitimate to have a pre-Miranda interrogation as long as there's the caveat that no inculpatory evidence obtained from it will be used against someone in court of law.

CONAN: No exculpatory evidence, you're saying?

WILL: No, inculpatory.

CONAN: Oh, inculpatory, anything that makes you look bad...

WILL: Right.

CONAN: ...would be used in court of law.

WILL: Right.

CONAN: Is he right on that...

WILL: Or would have to re-obtained after...

CONAN: He's only got one L, you've got three.

WILL: ...(unintelligible) Miranda rights.

Ms. FRANKLIN: Yeah. No. Actually, you can use that evidence. It's - the police are legitimately saying, is there another bomb, where is the other bomb, and the suspect replies and points to the other bomb, and is legitimately in the exigencies of the public safety exception...

CONAN: That can be used against...

Ms. FRANKLIN: ...that can be used.

CONAN: ...him in court.

Ms. FRANKLIN: That's the point of the exception, that that's okay. But I would agree with the first part of your statement, certainly, that the exception already exists, and the law already recognizes it, and we don't need to change that.

CONAN: Right. And I, you know, that's why this, you know, hearing about Congress trying to, quote, unquote, "fix Miranda" in light of Faisal Shahzad seems kind of silly to me.

CONAN: Well, we have to see what happens with the proposal when it actually reaches the - indeed, if it does - floor of the Senate and the House. Will, thanks very much for the call.

WILL: All right. Thank you.

CONAN: Would you expect that, if there is a proposal from the attorney general to, as he suggested, relax Miranda and make it more flexible, more up-to-date, is this something that's going to be presented to the Congress? He said he wanted to work with Congress on it, assuming that's going to be open, and in the light of day, here's exactly what we want to do and why we want to do it? Or is this something that's going to be put under some sort of secrecy?

Ms. FRANKLIN: Oh, I wouldn't expect the actual proposal to be secret. The negotiation pleading up to it may not be in the light of day. But I would expect that if there were to be a proposal, that certainly we would get to know ultimately what its terms were.

CONAN: Let's see if we can get one more caller in. Let's go to Daniel(ph), Daniel calling us from Apex in North Carolina.

DANIEL (Caller): Hi, thank you for taking my call.

CONAN: Sure.

DANIEL: I just wanted - that I think if we were to strip Miranda rights from terror suspects, it would be setting - it's actually American citizens, as Faisal Shahzad is - and I would note that the law makes no distinction between naturalized and born citizens, except that you can't run for president. I would say it's setting an incredibly dangerous precedent to strip civil rights from other Americans, because as of now, the law is very hazy on what we define as clear-cut crime in what are acts of terrorism. And I think that in this case, there wasn't sufficient evidence to suggest that Faisal Shahzad was working with other people in order to coordinate multiple attacks on the same day. This appeared to be a very isolated incident. We saw that the explosives...

CONAN: I'm going to - you seem to be right on one part of that, Daniel, and wrong on another. Yes, he was working with - alone, but with direction and apparently funding from the Pakistani Taliban, so...

DANIEL: Right. Right. He had taken training courses in Pakistan, but it didn't appear that he was going to coordinate multiple attacks on the same day.

CONAN: Now, that's entirely true, but you could understand the authority's interest in talking to him about that, since we've had examples of, well, sadly, several aircraft all being hijacked on the same day.

DANIEL: Certainly, yes. I absolutely understand that. But I would say that the ticking time bomb scenario is something that is a very slippery slope. And going so far as Senator Lieberman proposes that we do to remove citizenship, that is something that - treason does not remove your status of citizenship, it only incurs capital punishment.

CONAN: All right, Daniel, thanks very much for the call.

Ms. FRANKLIN: Yes. I just wanted to agree that it would be a dangerous precedent, but fortunately, I think it would be struck down as unconstitutional. The Supreme Court recognized it very clearly in the Afroyim case that I mentioned earlier, that Congress cannot strip citizenship.

CONAN: Sharon Bradford Franklin, senior counsel at the Constitution Project, with us here today in Studio 3A. Thanks very much.

Ms. FRANKLIN: Thank you.

CONAN: Tomorrow, political junkie Ken Rudin joins us. We'll talk with Rand Paul and Trey Grayson, candidates for the Republican Senate nomination in Kentucky. Join us then. This is TALK OF THE NATION from NPR News. I'm Neal Conan in Washington.

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