Leslie Teng: The Broad Scope of Public Safety

The 2001 Authorization for Use of Military Force Against Terrorists (AUMF) granted President George W. Bush expansive powers to wage a military campaign against enemy combatants without congressional debate; declaring war is constitutionally the prerogative of the legislative branch. President Barack Obama continued using the AUMF during his administration as well. The expansion of executive power has continued into 2018, where Mr. Trump has taken to executive orders to create immigration exclusions and to single-handedly implementing policy on the treatment of undocumented immigrant families. (Mr. Trump might insist that he is following Democratic legislation, but he is not; the policy stems entirely from the executive branch.)

All three men have claimed that the softening of boundaries on presidential powers was done in the interests of the United States. While the actions of President Bush, President Obama, and Mr. Trump are not necessarily equal in terms of magnitude or sentiment, they are similar in the demonstration of a larger trend. Whether explicit or not, the executive branch of the United States has taken a legitimate legal concern about public safety and drastically widened its scope.

In criminal procedure, police officers are required to administer Miranda warnings to advise the detained person that he or she has a right to stay silent. Officers must give this warning prior to questioning. Indeed, every Law & Order episode features one of the star detectives saying, "You have the right to remain silent, anything you say can and will be used against you," as the detective brings the arrested guest-star to the precinct. However, the case New York v. Quarles put in an exception to the Miranda rules. In situations of public safety and perceived immediate danger, officers may question a detainee prior to advising the detainee of his or her right to silence. In the case of Quarles, it was to locate a loaded gun.

The case was decided in 1984. In the years since, people such as Faisal Shahzad (attempted Times Square bomber) and Dzhokhar Tsarnaev (Boston Marathon bomber) were questioned without being told that they had a right to attorney and a right to remain silent, under the public safety exception. These suspects were questioned prior to the administering of their due process rights.

But, there do exist scenarios where those rights are never mentioned. Arguably the most famous modern example is the case of Anwar al-Awlaki. Al-Awlaki was an American citizen who later associated himself with al-Qaeda. While his allegiance to terrorist groups and communications with domestic terrorists were hardly disputed, al-Awlaki was still a citizen of the United States; ostensibly, he should have been afforded Constitutional rights to answer for his actions, seek legal counsel, and present a defense. Nevertheless, President Barack Obama ordered his killing via drone strike in 2011; his sixteen-year-old Denver-born son was also killed by drone strike two weeks later.

The so-called extrajudicial killing of the senior and younger al-Awlakis is an example of extreme action by the U.S. government under the penumbra of public safety. For the terrorist suspects interrogated before Miranda rights were read, they were plied for more information on their attacks – successful or botched – and potential co-conspirators. For Anwar al-Awlaki, he was killed without any attempt at two-sided due process proceedings in the interest of preventing future attacks on U.S. soil, since he had been so successful at inspiring attacks, both in the United States and abroad, in the past. Although the fate of al-Awlaki was certainly more final than the interrogation decisions regarding Shahzad and Tsarnaev, these actions by the U.S. government all lie on a spectrum of actions taken for public safety. All are related to how expansive one can define public safety and how one can justify the steps taken in its interest.

Some, like John Yoo, believe that citizens who commit or attempt to commit acts of terror forfeit their constitutional rights. Just as terrorist groups like ISIS would refuse to adhere to traditional “civilized rules of warfare,” so too should law enforcement turn away from traditional rules of due process and protection when it comes to combating these groups. After all, the goal is to protect the lives of peaceful Americans and extract as much information from terror suspects as possible. This argument is the emergency version of the public safety exception; this time, however, the delay in rights is indefinite, rather than the Quarles “standard” of whenever there is enough information to maintain public safety. It is a potent argument in times of great fear and danger. And it is an argument that likely would have come to the conclusion of sending the drones after al-Awlaki. Therefore, this argument is one of expansive and far-reaching consequences.

Moving beyond the “slippery slope,” this precedent would go great lengths to unravel the “justice” in “criminal justice.” Deciding to forego all constitutional protections is a rather natural extension of the proposal from Senators McCain and Lieberman that law enforcement “should not even bother” with Miranda for terror suspects. The suspects may be citizens, but their rights are secondary to the larger good. Moreover, this erosion of rights presupposes that the suspect is certainly guilty. It is possible that a suspect under interrogation may turn out to be innocent, but the senators are not calling for the waiving of Miranda in these situations in the interest of innocent parties; rather, it is for getting information from suspects who are deemed guilty by law enforcement, politicians, and/or the public.

Senator Lieberman expanded on that idea when he called for a new policy of stripping citizens of their citizenship once they are accused of committing a terrorist act against the United States. The loss of citizenship is not a punishment applied in addition to prison sentence after a trial, or even a consequence incidental to an indictment; it is rather more like collateral damage in an arrest. It is entirely possible that by the time the suspects are apprehended and arrested and interrogated, law enforcement already has an abundance of evidence backing their suspicions. It is entirely possible that law enforcement has monitored the suspects in the months leading up to the attack, or that law enforcement had communicated with the suspect in a sting operation. While it is unlikely, it is also entirely possible that the wrong suspect has been taken into custody.

It is this last option that gives the decision to loosen rights afforded to citizens – be it Miranda warnings or due process prior execution – such gravity. An uninformed suspect (who also would be unfamiliar with the plethora of police procedurals on television) would be coaxed (however forcefully) into answering questions, perhaps stumbling into a mistaken admission due to confusion or desperation. A suspect who eludes capture – and, therefore, interrogation – such as Anwar al-Awlaki would face a “judge, jury, and executioner”-like trial conducted by a government who views him as an enemy, with no possibility of shedding that heavy mantle of presumed guilt. The immediate fallout for the former hypothetical would be an innocent man imprisoned and the real culprit free to continue planning future attacks. The fallout for the latter is death.

Strong evidence pointing to Al-Awlaki’s ability to inspire attacks against the United States, either on a personal level through meetings or remotely through his widely-distributed recordings, rightly made him a sizeable threat against the United States and its public safety. Here, there was proof of intent to harm the United States and proof of ability to radicalize. However, he was still a United States citizen, regardless of whether he became an enemy combatant. For however guilty he may have been for domestic attacks, his fate was still extreme and unprecedented. But it was not unforeseeable. Between 1984 with Quarles and 2010 with a follower of al-Awlaki, the gap between arrest and Miranda extended from mere minutes to nine hours. President Obama’s decision stood on the shoulders of “public safety exception” and waived a citizen’s rights accordingly, although to a farther and more dangerous end than perhaps courts intended.

Public safety is indeed crucial. After all, it is the lives of thousands, perhaps millions, at stake. Law enforcement and government officials are correctly bound, by ethics and duty, to protect the public safety. However, balanced with those concerns are other ethical and duty-bound obligations to the standards of a fair justice system. The Supreme Court has ruled before that there exist circumstances where those standards are placed second in importance. However, the Supreme Court opinion that advocated for a truly broad and expansive suspension of rights for citizens in times of perceived public danger was Korematsu v. United States. While the case preceded Miranda v. Arizona, New York v. Quarles, Anwar al-Awlaki, and all the other mentioned terror suspects, Korematsu still involved issues of suspicion (by the U.S government of American citizens of Japanese descent), public safety (domestic attacks by Japanese-Americans in the aftermath of the attacks on Pearl Harbor), presumed guilt (the need to detain all such citizens and their families in the utmost haste), and suspension of rights (citizens were forced to live in poorly-furnished and heavily-supervised government compounds in remote deserts, with no way to demonstrate loyalty and be released from internment). Although Korematsu was never overturned, the case now stands as a prime example of government overstep, supposedly in the interest of public safety. Delaying the reading of Miranda rights to a suspect to securely locate a gun is acceptable; refusing any form of process and imprisoning citizens is not. Denying process and then killing citizens would go further than pushing the boundaries of acceptable public safety exceptions.

As a last point, the current implicit invocation of concern for public safety has arisen around immigrants. When Mr. Trump derides Chancellor Angela Merkel for allowing migrants into Germany and therefore causing crime to spike – even though crime rates in Germany remain low – Mr. Trump is implying that the decision to detain immigrants at the border and separate parents from children is done to keep the United States crime-free. This logic is erroneous, not least because communities in the U.S. where the immigrant population grew had decreases in crime rates. Understanding and forming an opinion on this issue, as well as the issues mentioned earlier, demonstrates the importance of the law in these uncharted times and the importance of keeping an eye on international issues – and their interplay with domestic policy – in these increasingly nationalist times.

Leslie Teng graduated from the University of Michigan in May 2015 with an A.B. in History and Political Science. She was Editor-in-Chief of the Michigan Journal of International Affairs from 2014-2015, and prior to that was the Regional Editor for Africa. Following Michigan, Leslie attended NYU School of Law, where she earned her J.D. in May 2018. She can be reached at lyteng@umich.edu or leslie.teng@law.nyu.edu.

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