In the past twenty years, American law enforcement and the Federal Bureau of Investigation have increased their presence abroad. This increased presence is due in part to terrorist attacks against American targets and narcotics trafficking that affects U.S. citizens. Law enforcement’s role overseas is to investigate violations of American criminal laws committed by non-U.S. citizens.
An integral component of the investigation process includes interrogating suspects. In the United States, any interrogated suspect is constitutionally protected by the Fifth Amendment right against self-incrimination. However, does this same right apply to non-citizens abroad? Per circuit courts’ understanding, the Fifth Amendment still applies in offshore interrogations. What is less clear is how this right must be given effect when interrogating non-citizens.
Miranda v. Arizona and its Framework
Domestically, the Fifth Amendment right against self-incrimination protects suspects during pretrial investigations. In the landmark case Miranda v. Arizona, the Supreme Court held that prosecutors may not use statements, whether exculpatory or inculpatory, stemming from the custodial interrogation of a detainee, unless the prosecution demonstrates the use of procedural safeguards. These safeguards ensure the privilege against self-incrimination. Miranda, therefore, mandates that before engaging a suspect in custodial interrogation, law enforcement officials must inform the suspect that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney during the interrogation, either retained or appointed. A defendant may waive these rights as long as the waiver is made voluntarily, knowingly, and intelligently. Furthermore, if the suspect wishes to consult an attorney before any questioning, the interrogation must stop. In creating this framework, the Supreme Court was concerned with the psychological elements of questioning that coerce defendants into admitting guilt. The Court intended to protect suspects from the inherent compulsion of an interrogation setting. Lastly, Miranda’s framework is about choice: the suspect should freely and voluntarily determine for themselves whether to make incriminating statements.
Miranda’s framework has endured for over sixty years. Today, Miranda warnings form an intrinsic part of the criminal justice system. However, the Supreme Court made clear that Miranda is not a “constitutional straightjacket.” In other words, Congress and states can continue searching for other options or safeguards to protect suspects from incriminating themselves. Until new effective safeguards are found, however, the framework outlined in Miranda must be used.
Courts’ Former Understanding of Miranda’s Applicability Abroad
The issue of Miranda’s applicability overseas first came up fourteen years after the Supreme Court handed down its initial decision. In United States v. Dopf, an FBI agent interrogated defendants who had transported a stolen a car from Texas to Mexico. The interrogations took place in Mexico. Prior to questioning, the agent informed defendants that they had a right to remain silent but that the agent “could not offer them an attorney in Mexico.” The defendants later made incriminating statements but, at trial, moved to suppress them. The Court of Appeals for the Fifth Circuit upheld the conviction, holding that as long as the American interrogator did everything “that he reasonably could have done” to advise suspects “of their right to remain silent, of the possible use against them of incriminatory statements, of the reason why they could not be furnished counsel by the U.S. Government while they were in Mexico and of the availability of the American Consul for their assistance,” admissions would be allowed at trial without depriving defendant of their Fifth Amendment right. Thereafter, in a similar case, Cranford v. Rodriguez, the Tenth Circuit held that Miranda should apply abroad but also recognized that because it was not possible to obtain an attorney, “this should not mean that while the defendant is in detention investigation must stop.” In doing so, the court approved a recitation of rights that did not inform the suspect of his right to an appointed attorney if he wished to have one.
As U.S. v. Dopf and Cranford v. Rodriguez demonstrate, the lower courts were beginning to diverge from Miranda’s prophylactic rules as applied to overseas interrogations. Specifically, lower courts were not honoring Miranda’s mandate that law enforcement inform the suspect of his right to counsel during an interrogation. Additionally, lower courts were hesitant to require that an overseas interrogation cease when a suspect asked for an attorney. In the lower courts’ view, law enforcement’s inability to provide counsel in an overseas setting was a reasonable constraint that did not require stopping the interrogation.
The Modern Framework: U.S. v. Bin Laden and its Appellate Counterpart
On August 7, 1998, suicide car bombers detonated explosives outside the U.S. Embassy Buildings in Dar es Salaam, Tanzania. Two hundred and twenty-four people were killed. FBI agents immediately flew to Nairobi to investigate. Mohamed Rashed Daoud Al-Owhali, a non-U.S. citizen, was taken into custody and interrogated. FBI agents introduced Al-Owhali to an Advice of Rights form that stated the following: “In the United States, you would have the right to talk to a lawyer to get advice before we ask you any questions and you could have a lawyer with you during questioning. In the United States, if you could not afford a lawyer, one would be appointed for you, if you wish, before any questioning.Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning.” During the course of the exchange with the FBI agents, Al-Owhali made several incriminating statements. At trial, he and his attorney moved to suppress the statements, arguing that Kenyan law did not prohibit Al-Owhali from having an attorney at the interrogation.
In U.S. v. Bin Laden, the Court for the Southern District of New York considered whether the Advice of Rights form was valid. Judge Sand wrote the opinion and indicated that Miranda’s “warning/waiver framework” applies abroad. This meant that in order to protect defendants from incriminating themselves in coercive custody environments, suspects overseas must be informed of the right to remain silent. Concerning the right to counsel, Judge Sand held that law enforcement was required to investigate the local laws of the foreign country to determine whether or not the suspect was allowed to have counsel present during the interrogation. Specifically, “[t]o the maximum extent reasonably possible, efforts must be made to replicate what rights would be present if the interrogation were being conducted in America.” Essentially, Judge Sand wanted Miranda’s framework to be honored in its original form. In doing so, Judge Sand departed from the holdings in U.S. v Dopf and Cranford v. Rodriguez which did not honor the right to counsel in an overseas interrogation in the same manner. Nonetheless, in his view, U.S. law enforcement must respect local custom with regards to a suspect’s right to an attorney at an interrogation.
In U.S. v. Bin Laden’s appellate counterpart, In re Terrorist Bombings of U.S. Embassies in East Africa, the Second Circuit affirmed that “foreign nationals interrogated overseas but tried in the civilian courts of the United States are protected by the Fifth Amendment’s self- incrimination clause.” However, while the Second Circuit also agreed with Judge Sand’s assessment of the right to remain silent in overseas interrogations, they disagreed with his holding concerning the right to counsel abroad. The Second Circuit believed that Miranda is satisfied as long as the detainee is simply informed of his rights under the U.S. Constitution. The Second Circuit disagreed that law enforcement agents needed to “the maximum extent reasonably possible, [make] efforts to replicate” the rights of the suspect as if the interrogation were conducted on home soil. Instead they held that U.S. agents overseas “need not become experts in foreign criminal procedure in order to comply with Miranda; nor need they advocate for the appointment of local counsel on a foreign suspect’s behalf.” Rather than adopt Judge Sand’s standard, the Second Circuit holds law enforcement agents to a lesser responsibility: they need not scrupulously attempt to uphold the detainees’ right to counsel even if the law of the foreign country permits counsel at a suspect’s interrogation. In essence, the Second Circuit’s decision is much closer to what U.S. v. Dopf and Cranford v. Rodriguez deemed adequate concerning the detainees’ right to counsel in an offshore interrogation.
The courts have come a long way: the Fifth Amendment does apply to detainees in offshore interrogations in some respects. This means that the warning/waiver format protecting a detainee’s right to remain silent is still applicable. However, the circuit courts’ current understanding of Miranda’s applicability abroad fails to honor the detainee’s right to counsel during an interrogation.
It is understandable that U.S. courts would not require law enforcement to supersede foreign law that explicitly prohibits attorneys for detainees during interrogations. Doing so would raise obvious issues of comity in the long run and strain U.S. relations with foreign countries. However, when balanced against the need to protect suspects from coercive interrogation environments, a framework must be created that allows detainees to access counsel in offshore interrogations. Otherwise, the threat that agents will not cease interrogation once the right to counsel has been invoked looms large. By not demanding that law enforcement make maximum efforts to replicate the detainee’s constitutional rights in a foreign setting, the Second Circuit and other circuit courts undermine Miranda’s aim of protecting the suspects’ right against self-incrimination. Lastly, while the Supreme Court in Miranda v. Arizona made clear that Miranda warnings are not “a constitutional straightjacket,” it also held that until new and better safeguards were developed, Miranda’s framework must be used. There is nothing “better” about court holdings that potentially threaten the detainees’ right to counsel in an interrogation.
The Supreme Court of the United States has never directly addressed the issue of Miranda in offshore interrogations. Were it to ever answer the question of Miranda’s applicability abroad, it would undoubtedly have to decide between the District Court’s approach in Bin Laden or the Second Circuit’s holding in In re Terrorist Bombings. Alternatively, it could create a new rule. Some scholars suggest that detainees should be allowed to access counsel even when the interrogation takes place in a jurisdiction where foreign law forbids the presence of counsel at an interrogation. While this is the ideal scenario for all non-citizen detainees, it is hard to envision the Supreme Court mandating such a rule given the need to protect U.S. foreign relations. In light of this, Judge Sand’s approach in Bin Laden seems to be, for now, the sounder measure. Balancing comity against the compulsion of interrogations makes Judge Sand’s approach perhaps one that, in the Supreme Court’s eyes, would be viable.
About the Author: Luis Manuel Rico Román is a 2L student at Cornell Law School. He received his undergraduate degree in German and Government & Legal Studies from Bowdoin College. Before attending law school, he conducted research in Germany under a Fulbright Research Fellowship on refugee integration policy.
Suggested Citation: Luis Manuel Rico Román, Exporting Miranda: How Fifth Amendment Protections Fall Flat in Overseas Interrogations Cornell J.L. & Pub. Pol’y: The Issue Spotter (Jan. 18, 2021), http://jlpp.org/blogzine/exporting-miranda-how-fifth-amendment-protections-fall-flat-in-overseas-interrogations/.