The Legality of Deliberate Miranda Violations: How Two-Step National Security Interrogations Undermine Miranda and Destabilize Fifth Amendment Protections

As part of the global "War on Terror," federal agents intentionally delay issuing Miranda warnings to terrorism suspects during custodial interrogations. They delay the warnings presuming that unwarned suspects will more freely offer vital national security intelligence. After a suspect offers the information he has, agents administer Miranda warnings and attempt to elicit confessions that prosecutors can use at the suspect's trial. No court has ruled on the constitutionality of this two-step national security interrogation process to determine whether admitting the second, warned confession is allowed under Miranda v. Arizona and its progeny. A fragmented Supreme Court examined two-step interrogations generally in Missouri v. Seibert but offered no clear holding. This Note argues that while confessions derived from two-step national security interrogations are admissible under Justice Kennedy's Seibert test, courts should instead apply Justice Souter's Seibert test to limit the use of such interrogations. This Note further contends that permitting two-step national security interrogations contravenes the spirit, if not the letter, of the Fifth Amendment as well as decades of Miranda jurisprudence.IntroductionBefore he pled guilty to conspiring to support the al-Shabaab terror or- ganization in June 2012,1 Mohamed Ibrahim Ahmed moved to suppress in- criminating statements he had made to federal agents.2 Ahmed made these statements during an interrogation that proceeded in two steps. First, during the interrogation's "dirty" stage, American agents interrogated Ahmed with- out issuing the warnings required by Miranda v. Arizona.3 Second, during the interrogation's "clean" stage, American agents again interrogated Ahmed but this time issued the Miranda warnings.4 According to the government, agents hoped that their failure to warn during the interrogation's first stage would lead Ahmed to speak more freely about information germane to na- tional security.5 According to Ahmed, agents also hoped that issuing warn- ings before the second stage would allow prosecutors to use Ahmed's second-stage incriminating statements at trial.6 In both phases of the inter- rogation, Ahmed's statements confirmed that he was involved with the al- Shabaab terror organization.7After his indictment, Ahmed moved to suppress these incriminating statements8 and challenged the agents' two-step process as a "clever strata- gem" and a mere "ruse" to violate his Fifth Amendment right against self- incrimination.9 The government opposed the motion, asserting that the post-warning, second-step confessions were admissible under Missouri v. Seibert.10In Seibert, a deeply divided Supreme Court considered the admissibility of confessions elicited during two-step interrogation processes.11 Specifically, an officer in that case testified that he had intentionally undertaken a two- step process for the explicit purpose of vitiating the effectiveness of the de- fendant's Miranda warnings.12 Although five justices held that Seibert's in- criminating statements were inadmissible, they disagreed in three separate opinions as to why.13 Consequently, Seibert did not issue a clear holding.14Seibert's two most influential opinions-Justice Kennedy's solo concur- rence and Justice Souter's four-vote plurality15-analyzed the interrogation procedure in different ways.16 Justice Kennedy's opinion concluded that a defendant's confession is presumptively inadmissible when elicited through a two-step interrogation process that police deliberately undertake "in a cal- culated way to undermine the Miranda warning."17 This test focused on the purposefulness of the law enforcement agent's actions as well as the motives underlying this conduct. By contrast, Justice Souter's test focused on the defendant's experience during the interrogation.18 Justice Souter directed courts to admit second, warned confessions only if the Miranda warnings functioned " 'effectively' as Miranda requires. …