The courts originally articulated the 'Public Safety Exception' in the case of a cop who, roughly speaking, asked a bad guy about more bad guys out of sight in a violent situation. When the cop testified about that conversation in the trial, it was thrown out since it was not done in the context of a Miranda warning. A (conservative) Supreme Court in the eighties said that was silly. The cops could not be expected to follow procedures when lives were at imminent risk.
During the modern era of international, violent conspiracy, the government has found itself with a nasty problem. After Miranda, a (supposed) bad guy can get a lawyer. During interrogation, the lawyer is there to prevent the interrogator from getting too much information from the bad guy.
This is the normal, American process intended to prevent the cops from coercing people into incriminating themselves and makes a lot of sense. However, it is really frustrating when you think that the guy might know the location of a factory making bombs or biological weapons.
It turns out that there are interrogation techniques that are pretty effective in extracting information from people who don't really want to talk. This is the category of things that are being referred to when people say that "torture is not the most effective way to get information.
However, these techniques require (I surmise) a prolonged game where the interrogator is able to establish a complicated rapport with the person. That rapport is not really possible when you have a third party, the lawyer, interrupting and saying, "Don't answer that," and "That's not necessarily true," and "He's trying to trick you here." That is, the presence of a lawyer is an active impediment to finding out the location of the bomb factory.
Tough luck!, some might say. Our system is based on the premise that it's better to allow a hundred guilty people go free than to put a single innocent person in jail. This premise responds the the very real, very important danger of government overreach. Government through history have used the legal system to illegitimately imprison enemies.
The challenge is the modern age where there are technologies available that allow killing on a scale never considered by the 'let a hundred guilty go free' idea. Yesterday, that one bad guy could, at worst, run around shooting people. Today, there are bombs, dirty bombs and biological weapons that can kill or injure thousands. Letting one bad guy go free who can kill thousands of people changes the calculation if all of a hundred times the number innocents that were protected are killed.
It turns logic on its head to say that, if a person is so bad that they are trying to kill thousands, we have to choose between preventing the killing and putting the bad guy in jail. But it also violates our sense of decency to allow authorities to have a team of highly sophisticated interrogators work over a person and make him or her face it alone. The rules that insist that a person must have a lawyer is very important.
But so is closing the bomb factory.
A decent government is based on the idea of balancing help and harms and this is a balancing act for which we are painfully unprepared. Liberals knee-jerk against the use of state power to manipulate individuals. Conservatives knee-jerk in favor of maximum use of state power to protect society. Over the last several years, the balancing point has moved strongly toward protectiveness.
The Bush administration took a pretty simple view of the matter: protecting society is always more important than civil rights. Obama has been more nuanced. He accepts rules but has transformed them in ways that codify a diminished view of civil rights. In particular, he has claimed that the 'Public Safety Exception' applies to more than the instant safety of the police and public. He says it applies to the finding of the bomb factory, too.
In the original use of the exception, it was very easy to know if it was properly applied. Not so in the modern use. If the CIA has been tracking a guy and claims he knows the location of the bomb factory, there is a long leap of faith to believe that he should be denied normal legal protections, especially since much of the information can't be revealed without compromising the information sources that make you know about the bomb factory in the first place.
The country needs a process to deal with these things that protects our basic constitutional civil rights. If all leaders were as sophisticated as Barack Obama, it would be acceptable to leave the decision to the good judgement of the government. The problem is that we could elect another George Bush any time and be faced with a leader whose disdain for civil rights resulted in many people being imprisoned without any trial at all after having information extracted from them in a way that, was it used in a trial, would make a mockery of our judicial system.
In this case, the use of the 'Public Safety Exception' distorts the idea of imminent threat beyond recognition because it is dealing with a real issue that is important but has not been accommodated by the law in any way. We need to find a way to deal with the need to extract information from people who know information that is important to the safety, perhaps the survival of our society. It's not that the person is a terrorist, or an enemy, or even a criminal.
- We need to figure out a way to decide that a person knows something essential to the survival of society and can be compelled to reveal it. There are some challenges in this:
- If the person is not otherwise subject to the justice system, what happens? (Imagine a person who inadvertently found the location of the nuke but, for some reason is unwilling to tell. Can he be interrogated, even though he's not even vaguely suspected of committing a crime?)
- How can this process be constructed so that information gained doesn't ruin our ability to have a fair trial for the person? (Imagine that innocent guy above actually is guilty of, say, parking illegally and that information is revealed during said interrogation. What happens to his parking trial considering that he is 100% innocent of involvement in the nuke problem?)