Interrogation: Criminal: Miranda

Interrogating Ahmad Khan Rahami

By Robert Chesney
Monday, September 19, 2016, 2:40 PM

Police in New Jersey have located and arrested Ahmad Khan Rahami, the prime suspect in the Chelsea and New Jersey bombings. Rahami fired on the officers who found him, striking two of them and then being shot himself (in the shoulder, possibly). He is now in custody and receiving medical care at a hospital in Newark. And now officials face an importantand potentially quite controversialset of decisions regarding how to go about interrogating Rahami.

The government obviously has a powerful and time-sensitive public-safety interest in learning whether Rahami was working directly with anyone else in connection with these bombings, and it has strong (but perhaps less time-sensitive) public-safety and intelligence interests in learning whether Rahami was working with the direction or support of an organization or network such as ISIS. As the Times reports:

Mr. Rahami was born on Jan. 23, 1988, in Afghanistan. He was described as a naturalized citizen who had been living with his family in Elizabeth, not far from where he was arrested. Associates said that several years ago Mr. Rahami traveled to his homeland and when he returned, he showed signs of radicalization. The significance of the visit was not immediately clear. It was not known whether he had any links to an overseas terror organization, or whether he had been inspired by such organizations and their propaganda efforts, as others have been. A law enforcement official said the Federal Bureau of Investigation was also investigating whether a second person might have helped him carry out his plan.

One hopes that the government already has deployed the HIG to participate in a potential interrogation of Rahami. But whoever is doing the questioning, the situation is fraught with legal and policy complexities. Indeed, it looks a lot like the situations with the underwear bomber (Abdulmutallab) in December 2010 and the Boston Marathon bomber (Tsarnaev) in April 2013. Key questions and preliminary thoughts:

Will he be held in civilian (law enforcement) custody, under color of pending prosecution?

There is no doubt that he is and will continue to be.

Will he be read the Miranda warnings right away, and more to the point, will the interrogation cease if and when he indicates his desire not to speak at all or to speak only after talking to a lawyer?

I very much doubt he will be Mirandized right away, or that interrogation will cease right away upon request by him. Indeed, it would be astonishing if the government did not invoke the Quarles public-safety exception in this instance.

How long before he is Mirandized, then?

That is the question journalists should be monitoring. Well, one of the questions. The other is:

What about presentment to a judge?

As Ben writes about here in Detention and Denial, presentment (which almost certainly will include immediate appointment of a federal public defender) is a huge looming issue quite apart from Miranda. Again, journalists should be monitoring this issue closely.

What about the inevitable calls for shipping Rahami off to GTMO to face a military commission?

He's a citizen, or so the Times reported, so that's not an option period. Even if he wasn't, we have never once in the post-9/11 era shipped a person captured in the US off to GTMO. And even if someone argues for doing so now, my response is: why would you want to run such a huge risk of delaying justice? The federal criminal justice system will do more than fine in this case, I am quite certain.