Apr 20 2013

Marathon Suspect in Custody, Not Mirandized

The second suspect in the Boston Marathon bombing on Monday was taken into custody last night in Watertown, MA. Nineteen year old  Dzhokhar A. Tsarnaev, was found hiding in a tarp covered boat in a backyard shortly after the “stay in place” order was lifted. He was bleeding heavily from gunshot wounds to the neck and leg. He is listed in serious condition in  Beth Israel Deaconness Medical Center, the same hospital where several of the bombing victims are recovering and his brother, Tamerlan, died of his wounds.

Boston Police commissioner, Edward Davis, thanked all who had helped in the manhunt stating, “It’s a proud day to be a Boston police officer.” Crowds lined the streets near the site of the capture, cheering the officers and other first responders as they left the scene. Crowds of relieved Bostonians gathered in the Commons chanting “USA” and “Boston” and waving American flags.

This morning, there has been no further word on Dzhokhar’s condition. The FBI has stated that he has not been read his Miranda rights at this time, citing the so-called public safety exception. Dzhokhar is a naturalized American citizen from Chechnya. Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) said Dzhokhar should not be read his Miranda rights and should be questioned for “intelligence purposes.”

“It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city,” McCain and Graham said late Friday in a joint statement. “The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorist trying to injure, maim, and kill innocent Americans.” [..]

“We need to know about any possible future attacks which could take additional American lives,” they said. “The least of our worries is a criminal trial which will likely be held years from now.”

Constitution? What Constitution? Joseph Stalin would have loved these two.

Constitutional lawyer and columnist for The Guardian, Glenn Greenwald explains the “public safety” exemption:

(T)he Obama DOJ exploited and radically expanded the very narrow “public safety” exception to Miranda, which was first created in 1984 by the more conservative Supreme Court justices in New York v. Quarles, over the vehement dissent of its liberal members (Brennan, Marshall and Stevens, along with O’Connor). The Quarles court held that where police officers took a very brief period to ask focused questions necessary to stop an imminent threat to public safety without first Mirandizing the suspect, the answers under those circumstances would be admissible (in Quarles, the police apprehended a rape suspect and simply asked where his gun was before reading him his rights, and the court held that the defendant’s pre-Miranda answer – “over there” – was admissible).

The Court’s liberals, led by Justice Thurgood Marshall, warned that this exception would dilute Miranda and ensure abuse. This exception, wrote Marshall, “condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations” and “endorse[s] the introduction of coerced self-incriminating statements in criminal prosecutions”. Moreover, he wrote, the “public-safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary” and said the court’s decision “cannot mask what a serious loss the administration of justice has incurred”.

As Marshall noted, the police have always had the power to question a suspect about imminent threats without Mirandizing him; indeed, they are free to question suspects about anything without first reading them their Miranda rights. But pre-Miranda statements were not admissible, could not be used to prosecute the person. This new 1984 “public safety” exception to that long-standing rule, Marshall said, guts the Fifth Amendment’s guarantee that one will not be compelled to incriminate oneself. As he put it: “were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties.”

As controversial as this exception was from the start (and as hated as it was among traditional, actual liberals), it was at least narrowly confined. But the Obama DOJ in 2011 wildly expanded this exception for terrorism suspects. The Obama DOJ’s Memorandum (issued in secret, of course, but then leaked) cited what it called “the magnitude and complexity of the threat often posed by terrorist organizations” in order to claim “a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case”. It expressly went beyond the “public safety” exception established by the Supreme Court to arrogate unto itself the power to question suspects about other matters without reading them their rights (emphasis added):

   “There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.”

That is what Graham advocated regarding Miranda: that Tsarnaev be interrogated about intelligence matters without Mirandizing him, and that’s exactly what Obama DOJ policy – two years ago – already approved. Worse, as (Emily) Bazelon noted: “Who gets to make this determination? The FBI, in consultation with DoJ, if possible. In other words, the police and the prosecutors, with no one to check their power.” At the time, the ACLU made clear how menacing was the Obama DOJ’s attempted roll-back of Miranda rights for terror suspects.

Constitution? What Constitution? Good work, Barack.

1 comment

  1. TMC

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