Editor’s Note: The following hypothetical was the basis for a moot court on Miranda rights and public safety that was conducted by the National Constitution Center on March 5 as part of the 5thAnnual Peter Jennings Project for Journalists and the Constitution. See the video here.
Act I – The crime
In the summer of 2011, Congress passes the “Omnibus Counterterrorism Act of 2011,” which allows the Executive to strip the citizenship of anyone belonging to a foreign terrorist group; it also rescinds Miranda rights to terror-suspect detainees on the grounds that the “public safety exception” to Miranda which the Court recognized in New York v Quarles should automatically apply to such interrogation.
Nearly two years later, on January 1, 2013, seven bombs rip through the US Navy base in San Diego, California. Hundreds are killed. FBI agents identify a boarding house attached to a Los Angeles mosque as the site where the attacks were plotted. Agents storm the residence and kill all the inhabitants but one: Mukhtar Zubair.
After his arrest, it is discovered that Zubair is a dual U.S.-Yemeni citizen born in the United States; that he didn’t join in the firefight, but he might still be an important source for intelligence on impending attacks.
Act II – The arrest
Zubair refuses to speak, citing his right to have a lawyer present and to remain silent. Calling upon his authority within the new law, the agent tells him that he in fact has no rights and will get no lawyer. He then threatens to send him back to Yemen, and let their security forces handle him. Reluctantly, Zubair cooperates. He admits he shared the boardinghouse with the suspects and heard plans for an “upcoming operation in New York,” but insists he knew nothing about San Diego. Zubair says he was there only because the Imam for the mosque had learned that Zubair had no place to sleep and invited him to stay there.
A few hours later, the FBI agents learn that the United States Supreme Court has struck down the section of the Counterterrorism Law that enables the Executive to strip people of their U.S. citizenship. But the rest of the law stands.
Later that evening, the FBI agents fan out to interview witnesses. They speak to the Imam who says he cannot recall approaching Zubair, but then hedges: “I cannot remember every person I meet at prayer.” They lack evidence, but the agents’ suspicions about Zubair and what he knows persist.
The next day, the agents interrogate Zubair again. They do not tell him that the part of the Omnibus bill about stripping citizenship has been struck down by the Court. They do tell him, falsely, that the Imam “ratted him out.”
Act III – The confession
At this, Zubair admits that he was staying at the mosque because he once made a financial donation to a member of the mosque to help start an Islamic website that advocates jihad against the United States and solicits funds for Hezbollah. When they ask Zubair how he got the money he donated, he admits that he helped run drugs out of Afghanistan. That is all that the agents needed.
The next day, an FBI agent comes to his cell and hands Zubair a written statement detailing his confessions, reads it out loud and asks Zubair if it is accurate. Zubair agrees. The FBI agent hands him a pen to sign the confession, but as Zubair reaches for the pen the agent acting out of an abundance of caution, finally reads him his Miranda rights. He says: “you are not obligated to sign this form without a lawyer present; if you do, it could be used against you in a US court of law.” Zubair replies, “You know everything anyway; I don’t see what difference it makes,” and signs.
Zubair is charged with drug smuggling and providing material support to a terrorist organization. Largely on the basis of his confession, he is sentenced to 70 years.
Act IV – The appeal
He appeals his conviction, arguing that he was not Mirandized, that the 2011 statute applying the public safety exception to all terror-suspect detainees is unconstitutional, and that all of his statements should have been suppressed at trial as the product of coercion. By a 2-1 decision, a three-judge panel from the Ninth Circuit Court of Appeals upholds this provision of the 2011 statute as constitutional, finding that it constituted a permissible codification of the “public safety exception” articulated by the Supreme Court in New York v. Quarles.
The Court asserts that Miranda rights – appropriate though they may be when dealing with garden-variety criminals — must yield to the reality of the existential dangers of terrorism.” The Court also finds that even if the public safety exception didn’t apply, Zubair waived his Miranda rights when he signed the confession.
Zubair seeks review in the United States Supreme Court on the question of the constitutionality of the Omnibus Counter-Terrorism Act, claiming its extension of the “public safety” exception to be inconsistent with the Fifth Amendment due process protections and Sixth Amendment right to counsel. The Court grants certiorari to consider these issues and, in an historic act, orders the oral argument to take place in Philadelphia, at the Ceremonial Courthouse of the Eastern District of Pennsylvania, before an audience including the Fellows of the Peter Jennings Project for Journalists and the Constitution. And so today, the Court has convened to consider Zubair v United States.
How would you decide the case?
Joe Pace is a recent graduate at Yale Law School and attorney with the D.C. public interest firm, Sanford, Wittels, and Heisler.