Groups Call for Release of Secret Government Guidance on Miranda Exception

Washington, DC – The National Association of Criminal Defense Lawyers (NACDL) and the Brennan Center for Justice at New York University School of Law today submitted an expedited request to the Department of Justice under the Freedom of Information Act (FOIA) seeking all “legal memoranda, procedures, policies, directives, guidelines, and other guidance[,]” since Dec. 25, 2009, “regarding use of the ‘public safety exception’ to Miranda v. Arizona in the course of terrorism or national security investigations.”

Miranda is the landmark Supreme Court case requiring law enforcement officials to read criminal suspects their rights, including their right to an attorney, before questioning them. A narrow “public safety” exception allows the government to skip this reading, but only in emergency situations. The Obama administration and some members of Congress hoped to enact legislation to make it easier to question terrorist suspects without reading them their rights. When these efforts proved controversial, the administration decided to take unilateral (and secret) action. 

Attorney General Eric Holder first revealed the existence of a new Miranda policy in a statement to the New York Times reported on Dec. 30, 2010. A Justice Department spokesperson confirmed the Department has issued formal guidance on the use of the public safety exception in terrorism investigations — guidance that determines when terrorists will or will not be read the rights. As explained in the FOIA request, the requested records “directly relate to a highly public and controversial debate over the propriety of issuing Miranda warnings in terrorism investigations and the legitimate scope of the public safety exception.” Nonetheless, the Justice Department has refused to make the guidance public.

“The Justice Department’s Miranda guidance amounts to secret law,” said Elizabeth Goitein, Co-Director of the Brennan Center’s Liberty and National Security Program. "In matters of national security, the government may need to keep some operational details secret. But the public, Congress and the courts always have a right to know what law the government is applying. The secret Miranda guidance shuts the American people out of the debate on an issue that directly affects their safety and their rights."       

“We remain very concerned that the federal government believes there could be a blanket terrorism exception to Miranda,” explained NACDL National Security Coordinator Michael Price, who filed the request on behalf of NACDL. “Miranda embodies a centuries-old tradition aimed at preventing coerced confessions that lead to wrongful incarceration and harm our national security. An effort to expand the public safety exception through formalized guidance to law enforcement risks turning the exception into the rule and creating an end run around the constitutional requirements of Miranda.”

The complete text of the FOIA Request is available on NACDL’s web site here.