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• Dechert LLP

The use of the “public safety” exception to interrogate terrorism suspects before reading them their rights appears to be a recent phenomenon. Indeed, as Attorney General Eric Holder noted over the weekend, the exception was “based on a robbery that occurred back in the ’80s and something to do with a supermarket.”

The public safety exception stems from a 1984 case, New York v. Quarles, where the Supreme Court ruled that statements given to police under questions prompted by a public safety concern are admissible in court.  In that case, a police officer noticed a man he had arrested for rape was wearing an empty gun holster. The officer asked where the gun was — before reading the suspect his Miranda rights — and the suspect told him. The statement was used against the man at trial.

The courts have never defined the parameters of the exception, and it’s not clear how it applies in terrorism cases.

But in at least one case, a federal court contemplated the use of the exception an international terrorism investigation, perhaps providing the foundation for the Obama administration’s approach. The case, which grew from the investigation of the 1998 U.S. embassy bombings in Africa, was decided in November 2008, in the gloaming of the Bush administration.

After reviewing Fifth Amendment challenges by two men convicted in the plot, a panel on the U.S. Court of Appeals for the 2nd Circuit held that foreign nationals interrogated overseas but tried in U.S. civilian courts are protected by the Fifth Amendment. But the court ruled that U.S. agents who interviewed the two men in Kenya had fulfilled their obligations, including giving Miranda warnings. The court affirmed the convictions of Mohamed Rashed Daoud Al-’Owhali and Mohamed Sadeek Odeh, who are serving life sentences.

In a footnote, the court suggested the possibility of a broad public safety exception where intelligence is at stake:

Our recognition that Miranda might apply to foreign detainees held overseas should in no way impair the ability of the U.S. government to gather foreign intelligence. First, Miranda’s “public safety” exception, see New York v. Quarles, 467 U.S. 649 (1984), would likely apply overseas with no less force than it does domestically. When exigent circumstances compel an un-warned interrogation in order to protect the public, Miranda would not impair the government’s ability to obtain that information. Second, we emphasize that the Miranda framework governs only the admission of custodial statements at U.S. trials. Insofar as U.S. agents do not seek to introduce statements obtained through overseas custodial interrogations at U.S. trials, Miranda’s strictures would not apply.

Holder said on Sunday he planned to work with Congress to make the exception “more flexible.” He did not elaborate, except to say he would seek to make the exception “consistent with the public safety concerns that we now have in the 21st century as opposed to the public safety concerns that we had back in the 1980s.”

Steven Engel, Deputy Assistant Attorney General in the Office of Legal Counsel in the Bush administration, said Holder appeared to be building on the 2nd Circuit ruling.

“I believe that’s the only authority for it,” said Engel, now a partner at Dechert LLP.

Engel said the courts would most likely determine the scope of the public safety exception, given that the Supreme Court has held Miranda to be a constitutionally inspired doctrine. He cautioned that legislation could backfire.

“Congressional support could be helpful, but it’s very clear that courts will make the final decision,” he said. “There is some risk that the courts could hold the public safety exception is not as broad as the Attorney General is seeking to push it.”