WASHINGTON – After being criticized for providing Miranda warnings in terrorism cases, the FBI has reminded its agents that in some instances they can question terrorist suspects without immediately reading them their rights.
The Justice Department said Thursday the FBI guidance told investigators they can delay telling suspects of their rights to an attorney and to remain silent when there is immediate concern for the safety of the public.
The guidance outlines how to use the public safety exception when appropriate.
The guidelines do not change Miranda or the public safety exception, which the Justice Department does not have the authority to alter because they flow from court decisions based on the Constitution.
"The evolving nature of the terrorist threat demands that we keep the men and women on the front lines advised of all lawful and appropriate tools available to them to identify, locate, detain, and interrogate terrorism suspects," the Justice Department said in a statement.
The FBI guidance was issued months after Attorney General Eric Holder offered to work with Congress on a law that would let law enforcement delay constitutional Miranda warnings to terror suspects.
Constitutional lawyers and former prosecutors have suggested that Congress could craft such a terrorism exception that could last up to 48 hours — longer than the court-mandated public safety exception that already allows law enforcement to hold off Miranda warnings for a short period during emergencies to save lives.
"This is a transparent political step," said Michael Volkov, a former federal prosecutor for more than 17 years in the U.S. Attorney's office in the District of Columbia.
"They are trying to inoculate themselves against charges by Republicans in Congress that they are not sensitive to the issue of giving Miranda rights to terrorism suspects," added Volkov, who was chief crime and terrorism counsel for the House Judiciary Committee from 2005 to 2008 and is now a partner at Mayer Brown in Washington.
The terrorism cases of Umar Farouk Abdulmutallab and Faisal Shahzad touched off a political debate last year between the Obama administration and Republicans on Capitol Hill over giving Miranda warnings to terror suspects.
Abdulmutallab, a Nigerian, was charged with trying to explode a bomb concealed in his underwear as his plane approached Detroit on Christmas Day 2009. Abdulmutallab was questioned for under an hour before being given a Miranda warning.
Shahzad is the U.S. citizen of Pakistani origin charged in last year's Times Square bombing plot.
Shahzad was questioned for about four hours before he was read his rights.
FBI officials have said both suspects cooperated with investigators and provided information after the Miranda warnings were provided.
"Where our laws provide additional flexibility, we must empower our counterterrorism professionals to leverage it," President Barack Obama's chief counterterrorism adviser, John Brennan, said in remarks prepared for a public appearance last Friday.
"Our law enforcement officers deserve clarity," Brennan said. "And that is why at the end of 2010, the FBI provided guidance to agents on use of the public safety exception to Miranda, explaining how it should apply to terrorism cases."
The public safety exemption was used by FBI agents to question both men before they were given Miranda warnings, Brennan said. Once the immediate threat to public safety was addressed, the warnings were given to both, he added.
Abdulmutallab, charged with conspiracy and attempting to use a weapon of mass destruction, is scheduled to go to trial next October.
Shahzad pleaded guilty to terrorism and weapons charges and was sentenced to life in prison.
The Wall Street Journal first reported on the FBI guidance.