Mark A. Godsey


In recent years, the FBI and other federal law enforcement agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and Internet fraud schemes to terrorism. Where this law enforcement activity includes custodial interrogation of non-American citizens abroad, must American law enforcement officials provide Miranda warnings to such suspects? In 2001 in United States v. Bin Laden, a federal district court held that the Fifth Amendment's privilege against self-incrimination applies to non-American citizens interrogated abroad, thus requiring Miranda warnings in this context. This Article criticizes the Bin Laden court's strict application of Miranda and suggests that Miranda should be interpreted as a flexible prophylactic rule that can be modified or discarded abroad where its application is illogical. The Article then argues that the policies behind Miranda do not always support its application abroad in the same way that it is systematically applied in the domestic setting. As a result, an FBI agent abroad should be required to advise a non-American suspect only of the rights that he enjoys in the country where the interrogation takes place, to the extent such rights can be reasonably determined by the agent under the circumstances surrounding the interrogation. In addition, if the FBI agent makes a mistake in interpreting the rights available to a given suspect under foreign law, and does not advise the suspect of a right which he in fact had, the exclusionary rule should not be employed as long as the agent misinterpreted the foreign law in good faith.

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