With the capture of the Boston Marathon bombing suspect Dzhokhar Tsarnaev and the death of co-conspirator and brother Tamerlan in a manhunt that shut down the city of Boston, the United States can afford to take a breath in relief. But as one chapter in the Boston Bombing saga closes, another one opens as legal proceedings begin to proceed against the surviving suspect. Already legal decisions were being made even when he had been capture, most notably one to not read him his Miranda rights immediately.
In the coming weeks numerous decisions on how to try Tsarnaev will be made and agitated for by the public, politicians, and media pundits. Some will clamor for the implementation of the controversial terrorism related policies that were established in the wake of 9/11 during the George W. Bush administration while others will want the full Constitutional protections offered to Tsarnaev, a U.S. citizen, utilized.
The split could already be seen over opinions to try Tsarnaev in a criminal court or in a military tribunal. Senators Lindsey Graham (S-S.C.) and John McCain (R-Ariz.) both issued a statement stating that they believed that Tsarnaev should be tried as an "enemy combatant." In the statement, they say that "Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel."
Elizabeth Cheney, chairwoman of the Keep America Safe organization and daughter of Dick Cheney tweeted in the aftermath of Tsarnaev’s arrest:
President Barack Obama's statement on the arrest of Tsarnaev strongly hinted that the suspect would be tried in a criminal court. The president said, "... it's important that we do this right. That's why we have investigations. That's why we relentlessly gather the facts. That's why we have courts."
However, one legal decision law enforcement authorities have taken has come under scrutiny. It was confirmed by a Justice Department official that authorities would question Tsarnaev without reading him Miranda right immediately.
The authority to do so is rooted is the "public safety" exemption that resulted from the 1984 Supreme Court case New York v. Quarles. The case involved the arrest of a man suspected for rape. The victim said that the suspect had a gun and police observed the suspect with an empty holster. The police asked the suspect where the gun was before reading him Miranda rights. The court ruled that this exemption was allowed due to the immediate threat the gun posed to public safety.
The use of the public safety exemption in terrorism related cases, however, has had a much more controversial history. In December 2009, authorities arrested Umar Farouk Abdulmutallab, who planning to blow up a passenger airplane. Authorities questioned him for 50 minutes before reading him his Miranda rights. Several Republicans, including Senator Graham, criticized this as Obama administration being soft on terrorism.
And in 2010, Faisal Shazad was arrested for attempting to bomb Times Square. He was questioned by the FBI before being read his Miranda rights, then read his Miranda rights, and proceeded to keep answering questions after having his rights read. Again Republicans, including Senator McCain, criticized the Obama administration for being soft on terror suspects.
"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."
The organization that can make this determination is the FBI in consultation with the Department of Justice. No judge is required to make this decision. This is an extremely dangerous precedent as intelligence not related to an immediate threat is an extraordinarily broad purview of questioning. The American Civil Liberties Union issued a statement critical of the policy, stating, "Miranda is a constitutional rule, not an interrogation policy."
Dzhokhar Tsarnaev may not have very much sympathy for the crimes he is suspected of committing, but that does not mean we can curtail him of the rights assigned to him by the United States Constitution. Although is it laudable that the Obama administration will allow the criminal courts to try Tsarnaev, the decision to curtail his Miranda rights is a worrying signal we should all be concerned about.