In Missouri v. Seibert, the U.S. Supreme Court outlawed police officers’ use of “question-first” tactics to obtain admissible confessions. But despite the government’s increased efforts to incorporate a criminal justice component into counterterrorism strategy, the Court has never applied Seibert to two-step counterterrorism interrogations, nor considered the effect that a confession given during an intelligence interrogation might have on a suspect’s ability to understand that he can, in fact, remain silent in response to subsequent questioning by law enforcement.
In 2017, two federal district courts issued the first recorded rulings on accused terrorists’ motions to suppress warned confessions obtained through such a process. This Note is the first to scrutinize two-step counterterrorism interrogations in light of these initial rulings. A close analysis of the facts of the two cases reveals potential weaknesses in the intent- based approach to evaluating two-step interrogations set forth in Justice Kennedy’s Seibert concurrence. When it comes to the intentions of intelligence interrogators, courts have critical blind spots.
By scrutinizing the logic of the two 2017 rulings and drawing on dynamics at work within the executive branch’s counterterrorism apparatus, this Note seeks to provide a more nuanced way of evaluating two-step counterterrorism interrogations under Seibert. It proposes three key modifications to the inquiry into interrogators’ subjective intent. First, courts should look for evidence of a deliberate intent to circumvent Miranda, not only at the point of the initial decision not to warn a suspect of his rights, but also throughout the unwarned phase of the interrogation. Second, courts should be more skeptical of an asserted pure intelligence-gathering motivation where the first-stage interrogators are closely tied to law enforcement. And finally, courts should be wary of the assertion that unwarned questioning was undertaken for intelligence purposes where there was no preexisting information indicating the suspect was of intelligence value. These guidelines preserve Justice Kennedy’s focus on intent, but refine the inquiry to allow courts to more effectively ferret out violations of terrorism suspects’ Fifth Amendment rights.
* J.D., Stanford Law School, 2018. I am indebted to David Sklansky for his thoughtful feedback and encouragement throughout the drafting process. Many thanks to the skillful editors of the Stanford Law Review—Dan Brenner, Amy Proctor, Catherine Yuh, Nathan Lange, Liza Starr, Joseph Tisch, Yoni Marshall, Annie Shi, and Jane Kessner—who improved this Note at every stage. Finally, thanks to Dan Moy, whose rapt attention to NPR inspired this piece.