A Final Word on Congress and Miranda

           From my last three posts on Miranda (see here, here and here), one can see the argument that would be made by opponents of a “public safety” exception statute.  They will say that Miranda’s requirements are “constitutional” in nature; ergo any exceptions are similarly of constitutional dimension.  Since it is the Court, not Congress, which decides what the Constitution means (at least in the mind of judicial supremacists), Congress’s view of the proper scope of the public safety exception is of little relevance. 

            It is certainly possible that the Court will take this view, but I don’t think that its precedents require it to do so.  There are at least two possible grounds on which the Court could uphold a public safety exception statute: (1) that Congress’s reasoned factfinding is relevant to the constitutional test as set forth in Quarles; and (2) that stare decisis does not require the Court to strike down statutes which do not attempt to reverse the general rule established in Miranda, but merely establish reasonable exceptions thereto. 

            Consider the following from the Court’s recent opinion in Citizens United v. FEC, 558 U.S. __ (2010): “When Congress finds that a problem exists, we must give that finding due deference, but Congress may not choose an unconstitutional remedy.”  By analogy, the Court must defer to a congressional finding that providing Miranda warnings to a terrorist would impede law enforcement from obtaining vital intelligence that might prevent an imminent attack, even though it need not defer to Congress’s ultimate determination on the admissibility of the terrorist’s unwarned statements.  Recall that in Quarles the Court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for [Miranda’s] prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”  If this balancing test is the controlling constitutional test, a congressional finding on the public safety issue would seem clearly relevant to, if not dispositive of, admissibility. 

            Furthermore, while Dickerson affirms Miranda’s continuing validity as a “constitutional holding,” it is less than clear what that holding is.  As conceived by the Dickerson Court , Miranda is essentially a constitutional policy that “reliance on the traditional totality-of-the-circumstances test raise[s] a[n] [unacceptably great] risk of overlooking an involuntary custodial confession.” 

            We know that stare decisis prohibits Congress from simply reinstating the  totality-of-the-circumstances test, but this doesn’t necessarily preclude Congress from establishing exceptions for certain categories of cases.  Quarles and other post-Miranda cases demonstrate that the courts can still make determinations of voluntariness even when no warnings are given.  It is difficult to see a principled reason why Congress could not provide for admission of voluntary statements in limited circumstances. 

            In his Citizens United concurrence, Chief Justice Roberts explained that stare decisis “counsels deference to past mistakes, but provides no justification for making new ones.”  Would applying Miranda’s rules, developed for use in ordinary law enforcement in the 1960s, to intelligence-focused interrogations of suspected terrorists qualify as a “new mistake”?  Hard to say, but I wouldn’t rule it out. 

            Finally, one should not forget that Miranda itself left room for legislative action that provides alternative safeguards to ensure voluntariness.  Such safeguards would provide an additional basis on which the Court might defer to a public safety statute.  Although it might be politically controversial, for example, Congress could require that unwarned interrogations of terrorists be videotaped, in order to facilitate the court’s determination of voluntariness. 

            So I think that critics are premature when they dismiss the viability of a public safety exception statute for terrorist interrogations.