In 1966, the Supreme Court instructed police, in Miranda v. Arizona, to tell arrested suspects that "you have the right to remain silent." But, in fact, you don't.
Rather, police -- or more to the point of current debate, federal agents interrogating suspected terrorists -- can skip the famous Miranda warnings and even use some degree of coercion to extract a confession, all quite legally. Indeed, you can even be jailed for refusing to answer questions after being granted immunity from any prosecution.
The problem for law enforcement -- especially in the terrorism context -- is that any statements obtained from an arrested suspect without Miranda warnings, or by directly coercing an involuntary confession, ordinarily cannot be used against the person in a criminal case.
A less familiar but perhaps more important problem is that current federal law also bars the use of most statements made more than six hours after a suspect's arrest without first taking him to a magistrate judge for a "presentment" hearing. In a terrorism incident, such an interruption could derail a promising effort to get information about co-conspirators and planned attacks.
The combined effect is to force officials to make an unnecessarily difficult choice: They can put terrorism suspects through the kind of prolonged, uninterrupted interrogation that is their best hope of preventing future attacks. Or they can maximize the chance of a successful prosecution. But they can't count on doing both, unless they get lucky.
This dilemma creates unhealthy incentives either to shun aggressive interrogation -- which the Obama administration has sometimes seemed all too ready to do -- or to subject suspects to the indefinite military detention, interrogation, and trial that the Bush administration favored.
The need to alleviate this problem -- and to parry Republican political attacks in the process -- is why Attorney General Eric Holder has announced plans to propose legislation making it easier for the feds to extract as much information as possible from captured terrorism suspects and prosecute them, too.
Civil-libertarian doves attack the incipient Holder proposal, which has not been publicly detailed, as a threat to constitutional freedoms. But any such threat is quite modest compared with the danger that the status quo poses to innocent lives.
Meanwhile, conservative hawks clamor for Holder and President Obama to hand suspected terrorists over to the military as enemy combatants. But they ignore the damage that this approach does to America's image abroad; the large risk that any convictions by military commissions will crash on appeal; the dangers of subjecting possibly innocent people to decades of detention; and judicial decisions requiring that "enemy combatants" be given lawyers and other rights.
A Miranda primer: The decision was a very broad reading of the Fifth Amendment's guarantee that "no person ... shall be compelled in any criminal case to be a witness against himself." The Court found interrogations of arrested suspects to be inherently coercive. From this premise, it held that any confessions should be deemed "compelled" -- and inadmissible in any criminal case -- unless the authorities first dispel the coercive atmosphere.
The Court's prescribed method for doing this was to tell suspects that they have a right to remain silent and to have a lawyer present during any interrogation, and that anything they say can be used against them in court.
But Miranda's holding that it is illegal to use a suspect's un-Mirandized statements to prosecute him did not make it illegal to extract such statements in the first place. The reason that most people have long assumed the opposite is that the primary purpose of interrogating a suspect has almost always been to obtain evidence to prosecute that person. So the ban on using un-Mirandized statements in court has, in practice, been treated as a ban on interrogating a suspect without Miranda warnings.
But what if the arrested suspect -- such as the U.S. citizens accused of seeking to blow up an airliner over Detroit on Christmas Day and to set off a car bomb in Times Square on May 1 -- may have information that could save lives by thwarting planned attacks or leading authorities to confederates?
In such a case, the primary goal should be to extract as much information as possible as fast as possible to protect public safety. And as long as this information is not used to prosecute the suspect, there is no violation of either the Fifth Amendment self-incrimination clause or Miranda, because there is no compulsion "to be a witness against himself." The Court made this clear in a 2003 case, Chavez v. Martinez.
Other decisions suggest that it would also be legal for federal agents to seek potentially lifesaving information by grilling suspects for hours using such coercive methods as yelling, bright lights, sleep deprivation, and death-penalty threats.
Such coercion would, like Miranda, make the information obtained inadmissible in court. But under the logic of a 1998 decision, County of Sacramento v. Lewis, the coercion itself would violate the Fifth Amendment's due process clause (not the self-incrimination clause) only if it were so extreme as to "shock the conscience" or "intended to injure in some way unjustifiable by any government interest."
The bottom line is that the justices might well uphold the constitutionality of a few hours or days of un-Mirandized interrogation of a suspect deemed by the government to have information that could save lives. But Miranda, or the presentment rules, or both would probably bar use of some statements from such a suspect to prosecute him.
To be sure, a 1984 decision called New York v. Quarles created a "public safety" exception to Miranda to admit into evidence a gun that police had found after spontaneously asking a suspect who was wearing an empty holster when he was arrested after a chase through a supermarket where he had hidden his weapon.
Officials invoked this public safety exception to avoid immediately Mirandizing Faisal Shahzad, who is accused of bringing the car bomb to Times Square, and Umar Farouk Abdulmutallab, who was caught trying to blow up the airliner over Detroit. But officials proceeded to give Miranda warnings relatively quickly, apparently out of concern that courts might refuse to extend the public safety exception to interrogations lasting for hours or days.
Holder wants Congress to expand the exception to include lengthy interrogation of suspected terrorists who may have actionable intelligence, without Mirandizing them. Some experts predict that the justices will balk. I think that they might defer, as they should, to the elected branches' judgment that national security calls for some stretching of the public safety exception.
Holder's second goal is to modify federal laws that bar use of evidence obtained without bringing the suspect before a magistrate within six hours of arrest, and perhaps to also create an exception to a Fourth Amendment precedent that sets a presumptive outer limit of 48 hours after warrantless arrests.
The need to relax these hearing requirements may be even more pressing than the necessity to expand the public safety exception to Miranda.
Many talkative suspects, including Shahzad, just keep talking even after agents quickly recite Miranda warnings, experts say. Suspects are more likely to shut up after a courtroom presentment appearance, which includes Miranda-like warnings, a defense lawyer, and other formalities. The especially chatty Shahzad repeatedly waived his right to a presentment hearing until two weeks after his arrest. But others may not.
The main purpose of presentment hearings is to prove to the courts that suspects arrested without warrants (the usual situation) are not being arbitrarily detained. Holder's proposed legislation may seek to provide a similar assurance without interrupting the interrogation by bringing the suspect into court. One approach, suggested by Brookings Institution scholar Benjamin Wittes, might be a high-level certification that there is probable cause of a terrorist crime and strong evidence that the suspect may have potentially lifesaving intelligence in a national security emergency.
Such a certification might also overcome a more formidable obstacle to prolonged, uninterrupted interrogation: the 1991 ruling in County of Riverside v. McLaughlin that the Fourth Amendment requires another type of preliminary hearing -- to determine whether there is probable cause that the suspect committed a crime -- within 48 hours of any warrantless arrest.
I'd be surprised, however, if Holder proposes to delay a terrorism suspect's first appearance before a judge by more than a week or two, except perhaps in extremely rare circumstances. The actionable-intelligence benefit of any information extracted from a captured terrorist by incommunicado interrogation shrinks, and the civil-liberties cost grows, with each passing day.
By striking a judicious balance in this precarious area, a new law just might help avert attacks so numerous or catastrophic as to drive the government to measures far more drastic and dangerous to liberty than anything we have seen so far.
This will be my last National Journal column. I thank the magazine for publishing these columns since 1998. I will continue as a contributing editor for National Journal and Newsweek, and will write for other publications as well.
This article appears in the May 22, 2010, edition of National Journal Magazine.