Earl Warren, Ernesto Miranda and Terrorism
Professor Amos N. Guiora
Earl Warren was a District Attorney, a Governor of California and a Chief Justice of the Supreme Court. As Governor of California, Warren was tough on crime, a fierce proponent of law and order, and a proponent of Japanese Internment during WWII, a decision he would later describe as wrong. Warren was not a great legal theorist; he was not a brilliant scholar with an impressive track record of influential law review articles or books. Warren was, however, one of the most significant and influential Chief Justices in US Supreme Court history.
His legacy is forever cemented in a number of momentous decisions. The obvious ones include Brown vs. Board of Education; Mapp vs. Ohio; and Terry vs. Ohio. The importance of these decisions to America and American’s is beyond doubt; their legacy is extraordinary. In Brown, a unanimous decision, the Court ended segregation in public schools; in Mapp the Court ruled that evidence seized in violation of the Federal Constitution is inadmissible in a criminal trial in a state court; in Terry the Court ruled law enforcement has the right to “stop and frisk” even in the absence of probable cause to arrest.
This book is not about any of those decisions; this book is also not a biography of CJ Warren. Rather, this book asks a very specific question: would Earl Warren apply Miranda vs. Arizona to individuals suspected of terrorism. Fully answering this narrow and specific question requires examining what led Warren to the Miranda opinion. What were his motivations in a holding widely assumed to be the pinnacle of the so-called “Warren Court criminal procedure-constitutional revolution?” Why would a Chief Justice whose background was deeply rooted in law enforcement carefully craft a decision whose primary focus was protecting a suspect? How did his experiences as District Attorney, Attorney General and Governor shape his understanding of the imbalance between the interrogated and the interrogator? How did America of the 1960’s influence Warren’s thinking?
Only by answering these questions can we determine whether the iconic phrase—-“you have the right to remain silent”——applies to those intent on attacking innocent Americans in the name of terrorism. To facilitate the reader’s understanding of this dilemma, I talked with lawyers, practitioners, members of law enforcement, prosecutors, and interrogators; in addition, I reviewed original source material including court documents, archival material and historical records. Regardless of whether the reader agrees with my conclusion, wrestling with this question is the essence of balancing legitimate individual rights with equally legitimate public safety concerns.
While Warren deeply believed in the former, he was deeply schooled in the latter. That is a powerful tension that demands our attention.