05/17/2010 08:56 pm ET | Updated May 25, 2011

Missing the Point: Terrorism and Miranda

There's been quite a fuss lately about whether government officials should have to give Miranda warnings to persons arrested for alleged terrorist acts. Attorney General Eric Holder has called upon Congress to enact legislation that would authorize government investigators not to give Miranda warnings in such circumstances.

The primary concern seems to be that if a person in custody receives Miranda warnings, he will be less likely to speak with his interrogators and the government will therefore lose potentially valuable intelligence information that might help combat terrorist networks and prevent future attacks. Although no one seems to have noticed, this concern is completely misplaced.

To understand why this is so, we need to go back to basics. The Fifth Amendment protects the privilege against compelled self-incrimination. The privilege prohibits the government from using any statement that it has coerced from an individual against him in a criminal trial.

In simplest form, this means that the government may not punish a criminal defendant for refusing to take the stand and incriminate himself at his own trial. But it goes beyond that. As the Supreme Court long ago recognized, the same principle must also govern pre-trial interrogations. That is, if the government cannot constitutionally coerce a defendant to incriminate himself at trial, it follows that it cannot constitutionally use at trial a confession that it has coerced from him at an earlier stage of the proceedings. For example, the privilege prohibits the government from using against a criminal defendant a confession that it beat out of him prior to trial.

It is often difficult to know, however, when a confession was given voluntarily and when it was the product of coercion. To mitigate the "inherently coercive" atmosphere of custodial interrogations, the Supreme Court held almost half-a-century ago in Miranda v. Arizona that any statement obtained by government interrogators from a person being held in custody must be presumed to be involuntary and therefore inadmissible in evidence against him at trial, unless the interrogators informed him prior to the interrogation that he has a right to remain silent, that anything he said can and will be used against him, and that he has a right to the assistance of an attorney. Only if the individual knowingly waives those rights can a statement made in the course of a custodial interrogation be used against him at trial.

It is certainly true that the giving of Miranda warnings reduces the likelihood that an individual subjected to custodial interrogation will make an incriminating statement. (It is important to note, however, that an incriminating statement is not the same thing as a confession, and that innocent people often make incriminating statements. For example, if you are arrested for murder, you might admit that you knew the victim, that you own a gun, that you were in town on the day of the murder, and that you had recently had a quarrel with the victim. All of those facts are incriminating and can be damaging to you at trial, but they might well be true even though you are innocent of the murder. Thus, even innocent suspects must be careful about making self-incriminating statements.)

The key point, though -- the point that has consistently been overlooked in the public debate over this issue -- is that government interrogators are under no constitutional obligation to give Miranda warnings - even when they interrogate a suspect in custody. This is so because the privilege against compelled self-incrimination protects individuals not against being compelled to make self-incriminating statements, but against the use of such statements against them at trial.

The Supreme Court made this perfectly clear in its 2003 decision in Chavez v Martinez, in which the Court held that the failure to give a suspect Miranda warnings is not a violation of the privilege against compelled self-incrimination, even if the suspect makes incriminating statements, if the statements are not used against the defendant at trial.

Indeed, in Martinez the situation was even worse. The police officers not only failed to give the suspect Miranda warnings, but also withheld medical treatment to him, even though he had been shot, in order to get him to confess. Even in those circumstances, the Court (rightly, in my view) held that there had been no violation of the privilege against compelled self-incrimination, because the statements were never used against him at trial. The privilege is violated, in other words, only when the coerced statement is use in court to prove the coerced individual's guilt.

This is all directly relevant to the interrogation of persons suspected of terrorist activity. The primary objection to giving such individuals Miranda warnings is not that they will not incriminate themselves. That is true for all suspects, including rapists, assassins and mass murders. Rather, the very specific and distinctive concern in the context of terrorism investigations is that if the suspect clams up the government might be denied critical information that might help it prevent future terrorist attacks. That is certainly an important concern.

But if the government wants to question such a suspect in order to learn about his training, the people he knows, the organizations with which he is associated, or whether he has inside information about other terrorist plots, it is completely free to do so without giving him Miranda warnings. And if the suspect then makes statements that reveal such information, the government is completely free to use that information to further its investigations and to prosecute any other individuals the suspect inculpates.

Of course, if the government does not give the suspect Miranda warnings, it cannot use his presumptively coerced statements against him in a subsequent criminal proceeding. But the government is still completely free to prosecute and convict him based on other evidence of his guilt.

Thus, it simply is not true that the giving of Miranda warnings interferes with the government's ability to obtain essential intelligence information from suspects who have been arrested for alleged terrorist activity. There is no need for special legislation to empower the government to do what it is already able to do.

What the government would gain from such legislation is not a greater effectiveness in preventing future terrorist attacks, but the ability to use coerced confessions against criminal defendants in violation of the privilege against compelled self-incrimination. This, the Constitution does not allow.