Sunday, April 21, 2013

Miranda, Exceptions and an Accused Terrorist

Dzhokhar Tsarnaev, the last living suspect in the bombings of the Boston Marathon, is currently in the hospital and under armed guard. Though he appears to be unable to speak because of his injuries, federal officials have stated that they intend to question him as soon as possible without reading him his Miranda rights, claiming the public safety exception applies.  

The Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
~ text of the 5th Amendment

In this country, we take our personal rights and liberties pretty seriously. In many ways, they are the foundation of our nation, the bedrock of what makes us who we are. The Fifth Amendment, just one in the original Bill of Rights, protects us from double jeopardy. It ensures we have the right to a trial, and it guarantees that we cannot be compelled to testify against ourselves in a court of law.

Though the Amendment makes that guarantee, over time it became obvious that defendants in criminal trials may not have been aware of it. They were often questioned without ever being told that they didn't have to answer the questions being asked. 

In Miranda v. Arizona, the United States Supreme Court held that admissions made during questioning when the suspect in police custody was not informed of their right to remain silent could not be admissible during trial. From that case comes the commonly recognized Miranda Warning.  It usually includes the following:

  • You have the right to remain silent.
  • Anything you say or do may be used against you in a court of law.
  • You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
  • If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
  • If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
  • Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

Essentially, anything the person says when they are in police custody can be found inadmissible if they aren't properly warned of their rights prior to questioning.

The Public Safety Exception
The case of New York v. Quarles created one exception from the requirement that Miranda warnings be given prior to questioning a suspect in police custody - the public safety exception.  In that case, the suspect in a rape entered a nearby store. The rape victim told police he was armed and had entered the building. When police found him and arrested him, they realized he had an empty gun holster. They asked him where the gun was prior to reading him his rights, which led to it's location on a shelf.  The court ruled that his answers were admissible because the question was an important one regarding the immediate safety of the public. The presence of a loaded gun in a public store was deemed to be enough of a threat to grant the police the right to ask that question prior to advising him of his rights.

This exception is a narrow one, usually only for immediate threats to the public. Extensive questioning and interrogation is not permitted under the exception. The police are allowed only to ask questions which provide the information necessary to discharge immediate threats.

In this case, Tsarnaev is currently in serious condition. He is not posing an immediate threat to anyone, and is under heavily armed guard, connected to machines currently keeping him alive. Police have said confidently that this was a small scale operation and that the two brothers appear to have been working alone. Since one is dead and the other in custody, the threat is discharged.

About the only question that could fit within this narrow exception would be to ask him if there were other live devices placed that could still be posing a threat to the public. Any other questioning about motive, planning, or the involvement of other people does not fall within that narrow exception.

FBI Memo
In 2010, the FBI issued a memo saying that the public safety exception to Miranda includes interrogation of suspected terrorists, allowing for detailed questioning prior to reading the suspect their rights.

The memo came about after Republicans in Congress criticized the Obama administration as being "soft on terrorism"  in 2009 because the suspect in a failed airplane bombing was read his rights prior to questioning.

It is worth pointing out here that the FBI can write all the policies and procedures it wants, and it can claim it has the right to interrogate suspects however it chooses. What the FBI lacks, however, is the authority to say that those decisions are Constitutional as applied to suspects that challenge the admissibility of any evidence attained through these interrogations. Just because they declare that they have the right to question suspects without informing them of their rights doesn't mean they actually have the authority to do so.  It also does not mean that any information they receive will be held admissible in court.

Why the Patriot Act doesn't apply
One of the most controversial provisions of the Patriot Act is the one that permits US investigators to indefinitely detain and question foreign terror suspects. It allows for the unchallenged deportation of such suspects. I've seen a few people try to allege that the Patriot Act applies to the Boston marathon bombing suspect, but the simple truth is that it doesn't.

He is a United States citizen, naturalized last year. As such, his Constitutional rights would directly conflict with any attempt to interrogate him indefinitely prior to advising him of his rights.

His citizenship is also the reason that the claims issued by Senators Lindsay Graham and John McCain that he should be treated as an enemy combatant should be dismissed.  He is not an enemy combatant. Last week, he was partying on the campus of his university here. He is a US citizen, his victims were on US soil. The fact that he is Muslim is not a reason. The fact that he is originally from Chechnya is not a reason. Any speculations about his motivation is not a reason.

Why should any of us care about his rights?
This man is suspected in the deaths of four people now, and the injury of hundreds. If he's not guilty, he's going to have a hell of a time proving that now after the events that took place in Watertown. The fastest way to appear guilty is to go out in a blaze of glory the way he and his brother did.

He may not even survive his injuries at this point, and some are saying now that he may never be able to speak because of the damage to his throat.

If and when the government officials are able to question him, he should be read his rights first. There is a boatload of evidence in the case already.

He should be read his rights because he is an American citizen just like you and I, and regardless of what he is accused of, he deserves the same protection of the Constitution as anyone else does.

The gravity of a crime doesn't negate the Constitution.

The seriousness of a week long manhunt doesn't strip someone of their rights.

We should all care about him being read his most basic rights because of the ramifications this could have for anyone accused of a crime. If we begin to allow erosion of those rights in cases like this, it's a slippery slope. One reason expands to another, to another, to another, until the right itself is stripped of meaning.

I am sure there are people out there who will accuse me of being anti-American or a terrorist sympathizer.

I am not.

I am a defender of the Constitution.

It applies to everyone, even those accused of the most heinous crimes.

I am sure there are those who will say that I'm feeding into the media frenzy, giving this guy what he wants by giving him attention.

I am not.

I am pointing out the fact that we cannot allow fear or terror to alter the way our legal system operates. We cannot allow people like him to force us to lower our standards. We cannot treat suspects differently because we think they might be somehow connected to religious fundamentalists. We cannot be blinded to the fact that this public safety exception wasn't employed in other cases where there were actual threats to the public, and application of it only when the accused is Muslim reeks of discrimination.

If we allow the acts of a terrorist to fundamentally change law enforcement and legal proceedings, isn't that letting them win?

We have to be better than this.

We have to hold fast to the rights we fought for.

We need to have the integrity here, refuse to be rattled by fear.

The United States has long held that we won't negotiate with terrorists. Let's not lower our interrogation standards or legal standards for them either.

If we do so and give in to the desire to treat them differently, they are changing us, which is exactly what they want.

"The difference between us and the enemy is how we treat the enemy."
-Rear. Adm. John Hutson, former Navy lawyer


  1. Great post, Kelly. In the hours following his apprehension I was very supportive of the public safety option. By now I feel any immediate risk to the public (explosives, IEDs, etc.) is unlikely. He is a citizen and should be treated as such and therefore should be read his Miranda Rights.

  2. So, so, so well said. I thought the same thing when I heard about the miranda decision. But of course, I lack the law background to knock it out of the park the way you just did.

  3. Thank you. I completely agree with KM--whatever it took to stop the threat, do it. But now is a different story altogether. Thank you for explaining it in a way that even I could understand it!

  4. This is beautifully written. I'm going to share this, if that's okay with you.

  5. There is a Domestic Terrorism stipulation in the patriot act. He is a domestic terrorist since he is an American citizen

    1. As an American citizen, his Constitutional rights would trump any provisions argued to apply to him in regards to interrogation prior to advisement of his rights.

  6. It's not that I don't agree with you, but I CAN tell you it is only because I *fear* that slippery slope you mentioned. You are right that one thing leads to another, we must hold fast - as much as that pains me to say. Because I can tell you I am MORE concerned of the rights of those that lost their lives and limbs that day, those that were injured whether it be physically or emotionally, the family members who had to travel home with one less than they went with, can you imagine that car ride? that flight? How horrible.

    I am fine with the exception being used in the initial hour(s) afterward to ascertain if there were any other exploding devices anywhere, and even if it were unclear if he were going to survive to maybe get a dying mans statement to the WHY of it all (as if there can really be a *why*)

    Read the bastard his rights, not because HE deserves them, but because WE DO.

  7. The law is the law. No doubt. But what is the punishment/consequence of breaking the oath of citizenship as this man did if he admits to the bombings? If his citizenship is revoked because of his admissions before reading of rights, how does that affect the Miranda question?
    This is the relevant part of the oath of citizenship:

    "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

    1. The revocation of citizenship usually requires a federal court to find that someone lied in the procurement of citizenship. Association with a terrorist group can be grounds, but the threshold is high and the process takes a while.


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