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Photos © Carol H. Feeley

For more than a decade, lawyers and policymakers have argued about how to prosecute suspected terrorists. Should they be treated like any other criminal suspect, or as enemy combatants seized in the heat of war? Even those who favor the civilian courts over military tribunals – as the Obama administration has – face thorny issues such as the admissibility of evidence gained in absence of Miranda warnings, in which the apprehending officer advises a criminal suspect of his constitutional rights (the right to remain silent, to speak with an attorney, etc.). In 1984, the Supreme Court established a “public safety” exception to Miranda, but to many this remains inadequate to address modern terrorist threats.

Two of the nation’s top Supreme Court litigators, Carter G. Phillips and Kannon K. Shanmugam, argued a case based on hypothetical federal legislation that exempts police from issuing Miranda warnings to individuals suspected of terrorism. Click here to read the hypothetical.

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A jury of nine distinguished judges decided if such legislation could withstand constitutional scrutiny:

The Honorable Michael Chertoff, Senior of Counsel, Covington & Burling LLP, former Judge, United States Court of Appeals for the Third Circuit, and former Secretary of Homeland Security (2005-2009)

Michael A. Fitts, Dean and Bernard G. Segal Professor of Law, University of Pennsylvania Law School

The Honorable Brett Kavanaugh, Judge, United States Court of Appeals for the District of Columbia Circuit

The Honorable Judith S. Kaye, Of Counsel, Skadden, Arps, Slate, Meagher & Flom LLP and former Chief Judge, New York State Court of Appeals

The Honorable Timothy Lewis, Of Counsel at Schnader, Harrison, Segal & Lewis and former Judge, United States Court of Appeals for the Third Circuit

The Honorable Theodore McKee, Chief Judge, United States Court of Appeals for the Third Circuit

The Honorable Marjorie O. Rendell, Judge, United States Court of Appeals for the Third Circuit

The Honorable Albert M. Rosenblatt, Of Counsel at McCabe & Mack LLP and former Associate Judge, State of New York Court of Appeals

The Honorable Dolores K. Sloviter, Judge, United States Court Appeals for Third Circuit

Carter G. Phillips is the managing partner of the Washington, D.C. office of Sidney Austin LLP, and is a member of the firm’s Management Committee. He served as a law clerk to Judge Robert Sprecher on the U.S. Court of Appeals for the Seventh Circuit and Chief Justice Warren E. Burger on the United States Supreme Court. As Assistant to the Solicitor General, he argued nine cases in the U.S. Supreme Court; since joining Sidley, he has argued more than 60 additional cases. Phillips also has argued over 80 cases in the federal court of appeals and more than a dozen in other appellate courts.

Kannon K. Shanmugam is a partner with the Washington, DC law firm Williams & Connelly LLP focusing on Supreme Court and appellate litigation. Described by Legal Times as a “rising star” of the Supreme Court bar, Shanmugam has argued 10 cases before the Supreme Court. He joined Williams & Connelly in 2008, after serving as Assistant to the Solicitor General in the Department of Justice – the first lawyer in 22 years to join the firm directly as a partner. Prior to working in the Department of Justice, he clerked for Justice Antonin Scalia of the United States Supreme Court.