One spring morning in the mid 1990s, a man whose last name was Liberatore rang a doorbell, pretending to be a delivery person. Threatening a weapon, he gained entrance to the home somewhere in the Quad Cities, Illinois, tying up a teen-aged babysitter along with the young boy the babysitter was watching. Then he left, kidnapping the family's 11 month old baby. Eventually the young boy was able to free himself and call for help. The hysterical parents rushed home and quickly notified the police and FBI.
Later that day, the kidnapper called the parents and made a large ransom demand, threatening the baby's life if the authorities were notified or the money was not paid. After the ransom drop was completed according to the kidnapper's elaborate scheme, FBI agents apprehended the perpetrator. By that time, night was coming, the temperature was dropping and the baby had been missing the entire day. When asked where the baby was, the first words out of the kidnapper's mouth were vulgar but amounted to a "clear legal invocation" of his right to attorney under the Miranda protocol. The FBI agent on the scene, however, reasonably feared that following the Miranda invocation in that circumstance, not asking the kidnapper any further questions, would mean the baby would likely die. So the agent used his persuasive skills without any threats or physical force to convince the kidnapper to voluntarily tell the FBI where he had hidden the baby. After a short time of talking with the agent, Liberatore described having put the baby in a duffel bag and then hiding the bag and baby in the middle of a forest that morning shortly after he had taken the baby. Police and FBI rushed to search the forest that night and were able to find the baby still alive and rescue it, although it had managed to crawl out of the duffel bag.
The story above is based on a true case and would have made for one of the rare happy endings in law enforcement had it not been for an Illinois state judge who, months later, was unable to put himself into that sort of tense life and death situation facing law enforcement. The judge failed to recognize how the "loaded gun in the grocery store" emergency, that led the U.S. Supreme Court to carve out its Quarles "public safety exception" in 1984 to the Miranda requirements, should govern (even more so) the situation of this kidnapped baby's life hanging in the balance. As I documented a couple weeks ago here, similar befuddlement as exhibited by the Liberatore judge was to repeat itself during (and for years after) the attacks of 9-11. I unsuccessfully asked on the afternoon of 9/11/01 and renewed my pleas the next morning. Although there was speculation for days as to whether more hijacked planes were heading our way, Department of Justice officials turned down my request to use the Quarles "public safety exception" to conduct an interview of an Al Qaeda suspect already in custody in Minnesota. The failure to appreciate that there was already a legal, ethical and effective mechanism by which to interview someone in these exceptional emergencies, was very costly. It meant giving up the chance of learning about shoe-bomber Richard Reid who came perilously close to bringing down an airliner three months later.
I couldn't believe no one viewed the 9-11 attacks as a more compelling emergency than the circumstances of the loaded gun left in the grocery store that the Quarles decision was based on. Consequently the first legal memo in the FBI's investigation of 9-11 is the one I wrote on this issue. I repeated my complaint in footnote 8 of my so-called "Bombshell Memo" leaked to the media in May 2002. And the pertinent excerpt from my statement on June 6, 2002, before the Senate Committee on the Judiciary "Oversight Hearing on Counterterrorism" read as follows:
The second legal issue, involving the "Quarles public safety exception," is something that I attempted to call in to some of your staffers on the eve of the Patriot Act becoming law. I also alluded to the issue in one of the footnotes to my letter. In a nutshell, here's the issue. There was a Supreme Court decision almost two decades ago, in 1984, New York v Quarles 467 U.S. 649. wherein the Court decided that an exception to the Miranda rule should exist when the questioning was designed to protect the public safety. In that ease, the Court found that a police officer who was concerned that a criminal subject may have left a loaded gun in a grocery store, was permitted to question the subject without first providing Miranda warnings nor obtaining a Miranda waiver. Although this 'public safety exception" is taught to new FBI agents at the FBI Academy, it seems to have been largely ignored and/or forgotten by prosecutors and courts. Some courts limit the Quarles decision strictly to its facts -- that is, you have to have a possibility of a loaded gun in a grocery store in order to fall under the Quarles exception when any number of other situations could pose equally dangerous consequences. There is actually a decision by a state appellate court in Illinois that refused to apply the Quarles, exception to a situation wherein a kidnapper had left an 11 month old baby in a duffel bag in the middle of a forest. The baby would probably have died if the FBI agents had not deliberately disregarded the dictates of Miranda in favor of interrogating the kidnapper, but the court was apparently not convinced and refused to apply the Quarles exception to the case. As I said in the earlier footnote, with the focus now on preventing acts of terrorism, the law in this area needs to be clarified. It may be possible to enact legislation amending 18 U.S.C. 3501 on the admissibility of confessions by at least providing a defense from civil liability for federal agents who must, under these types of situations, violate the Miranda rule in good faith, in order to protect public safety.
Instead of exploring the narrow legal emergency exception that already existed under the Constitution, however, which would have been conducted under the transparent auspices of criminal court mechanisms, including determining whether any further clarification and/or creation of a statutory defense from civil liability was in order to make the Quarles exception usable, the Bush-Cheney Administration simply went the route of trying to remove their actions from all judicial (and ethical) parameters and oversight.
Fantastical "ticking time bomb" plots from Jack Bauer TV inspired the
Bush Gang to jump over the legal and ethical methods and go immediately
to the "dark side", entailing serious legal departures from not only
the constitutional rights to due process, against self-incrimination,
the right to attorney, the right against unreasonable detentions and
searches, etc, but in violation of the international and national legal
protections against the use of torture and cruel and inhumane
punishments. Even more telling is the fact that Bush apologists and
utilitarians still extensively rely on the "ticking time bomb
hypothetical" to falsely argue that public security and efficacy are
compromised by adherence to ethics and law. New terrorist attacks and
attempts elicit continuing outcries for more dark side "war powers" to
conduct targeted assassinations, send suspects to black sites, places
like Guantanamo and prisons in Iraq, Afghanistan and elsewhere, where no
law or judicial mechanism can seemingly reach them.
What happened is that the judge confused "Miranda Rights" originally created only as a means to an end -- the big word for that is "prophylaxis" -- with what the prophylactic Miranda rule was created to guard against: true violations of the 5th and 6th Amendments. (It should be noted that the Miranda Rule has come to encompass "legal prophylaxis upon prophylaxis" (as one judge described it) with absolute bars and technicalities over and above what the rule was originally designed to protect against -- the actual coercing of (inherently false or unreliable) statements or confessions from suspects.
It's also been forgotten that Miranda was devised years before police
routinely videotaped their interrogations (as a superior method of
proving they are not overcoming a person's will or overstepping the
Constitutional voluntariness standards). After more than 40 years, the
Miranda protocol (custody plus interrogation = warnings plus waiver) and
its legal progeny comprising numerous legal technicalities, constitutes
one of the most complicated areas of criminal procedure. My FBI legal
counsel colleagues and I probably devoted half of our teaching time to
the various intricacies of the Miranda rule.
It's therefore disingenuous to suggest that the public safety exception which, despite its constitutional status, judges have rarely recognized and largely ignored all these years, "would swallow the rule". Certainly the Bush Administration seemed to forget and ignore it! By contrast, it is the Miranda prophylaxis which, since its creation in 1966, has swallowed the well-founded jurisprudence governing voluntariness.
Narrow exceptions to general legal principles like the "exigent
circumstances" exception to the search warrant requirement and the
"public safety exception" to the Miranda rule of interrogation, actually
work to strengthen the broader legal principles. The several hours of
legal training mandated annually by the FBI and by most professional
peace officer standards on custodial interrogation issues, and more
importantly the officers' knowledge that they stand to be grilled by
defense attorneys and forced to justify their actions in compliance with
the Constitution to the satisfaction of a judge is the critical factor.
The all-important key to maintaining the narrow justification for a
true life and death emergency is to keep authorities' actions subject to
public and judicial oversight through the court process so that, in
fact, it can be appropriately reviewed and curtailed if need be. Just
as the age-old "exigent circumstances" exception to the warrant
requirement has never swallowed or even threatened to swallow the
requirement for police to obtain a warrant before conducting a search in
non-emergency situations, neither will the "Quarles public safety
exception" swallow the Miranda Rule.
Perhaps the worst interpretations that have stretched the Miranda doctrine to negatively impact on public safety were decisions that came down just a little before 9-11 finding officers could face potential civil liability for violation of somebody's "Miranda rights". Then in 1999, Republican Congressman Joseph McDade (thinking he was getting even with Janet Reno's DOJ who had unsuccessfully prosecuted him for corruption) pushed the "attorney no-contact aspect" even further as his "swan song" before he retired from Congress. Even though Eric Holder opposed McDade and got a six month delay implementing "McDade's Law", it went into effect in 1999, effectively hurting investigations and sacrificing public safety while strengthening the defense (and the entire attorney) bar by making the "no contact" rule (originally designed for civil litigation so one attorney could not take unfair advantage of an opposing attorney's clients) along with other state legal ethics rules applicable to federal government attorneys supervising criminal investigations.
I've been objecting to torture and "dark side" methods since we became aware of their use -- here's an example -- as not only illegal and unethical but also as ineffective measures. To begin with, the "ticking time bomb" scenario is more than rare; it's mostly false as it's based on a number of hypothetical premises. That means the "ticking time bomb -- torture saves lives" utilitarian rationale is nothing short of Orwellian. That doesn't mean, however, that unique situations don't arise from time to time when kidnap victims are buried alive or stuffed in duffel bags in the middle of forests. Aside from the more common criminals hiding their loaded guns in grocery stores, "terrorists" and/or plain extortionists have occasionally done things like plant poison in breakfast cereal boxes. The Quarles court recognized that it would make no sense to force police to decide between public safety (i.e. an attempt to locate the tainted cereal before anyone ate it) and the goal of obtaining admissible evidence. The criminal justice goal of detecting and stopping ongoing crimes is not disconnected or opposed to the other criminal justice goal of prosecution of past crimes. Both are important and both uphold the integrity of the court system. Law enforcement professionals don't need any of the "dark side" extrajudicial methods begun by the Bush Administration but they do need to use the legal exception to the Miranda Rule in those rare but actual public safety emergencies when lives hang in the balance.