While we had national support for the successful law-enforcement efforts to capture Boston Marathon bombing suspect Dzhokhar Tsarnaev yesterday, the aftermath has demonstrated the usual political divisions in this country. Republicans see terrorism as reason to ignore Constitutional liberties, the left (joined by the ACLU) protests the lack of Miranda warnings, and the Obama administration has taken a middle of the road approach. The Obama administration is ignoring Republican pressure to treat Tsarnaey as an “enemy combatant” and deny him right to legal counsel or a fair trail but is using the public safety exemption to postpone reading of the Miranda warnings.
From a pragmatic viewpoint in this particular case I doubt that this will have much impact. There is ample evidence of Tsarnaey’s guilt even before he is medically capable of saying anything. Being immersed in American popular culture (as indicated in interviews with friends and his Twitter account), Tsarnaey is also probably well aware that what he does say can be used against him. I have seen contradictory information in various posts on the subject I read today as to whether anything he says before being advised of his rights can be used to convict him under the public safety exemption. There is no reason to believe that civilian courts could not handle this case, but strong civil liberties arguments for failing to follow Constitutional safeguards which have been strengthened by the courts with decisions such as establishing the Miranda rights in light of a past history of abuses.
What matters here is the precedents which are established for trials of American citizens in future cases who are accused of terrorist acts, and the degree to which we preserve the rights of the accused in the post 9/11 era. Emily Brazelon discussed many of these concerns at Slate:
There is one specific circumstance in which it makes sense to hold off on Miranda. It’s exactly what the name of the exception suggests. The police can interrogate a suspect without offering him the benefit of Miranda if he could have information that’s of urgent concern for public safety. That may or may not be the case with Tsarnaev. The problem is that Attorney General Eric Holder has stretched the law beyond that scenario. And that should trouble anyone who worries about the police railroading suspects, which can end in false confessions. No matter how unsympathetic accused terrorists are, the precedents the government sets for them matter outside the easy context of questioning them. When the law gets bent out of shape for Dzhokhar Tsarnaev, it’s easier to bend out of shape for the rest of us.
She concluded with this warning: “But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.”
Scott Lemieux added:
It is true that, in a narrow sense, the federal government is free under Miranda to interrogate Tsarnaev without informing him of his rights if it believes it has enough independent evidence to convict him. But this is not the only consideration. Miranda does not require us to be indifferent about the distinction between coercive and non-coercive interrogations, and indeed its logic suggests that we shouldn’t be. Earl Warren, to his great credit, did not believe that there was a inherent contradiction between professionalism and the respect for the rights of the accused and crime control. The local authorities that relied on coercive interrogations and didn’t follow professional procedures weren’t more likely to convict criminals, although they were more likely to convict the innocent. Miranda reflected this belief, and the intent of the rule was to inhibit coercive interrogations, because coercive interrogations were both wrong in themselves and produced unreliable information.
To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda — sends the opposite message. It’s the message of the previous administration — i.e. that the rule of law and the “war on terror” are incompatible, that slapping the label “terrorist” on a suspect means that professional procedures that respect the rights of the accused can’t work. This isn’t right — it’s wrong in terms of the values it represents and it’s wrong in terms of the underlying assumption that less respect for the rights of the accused means more effective crime control. The appropriate course of action is for Tsarnaev to be treated like any other criminal suspect, consistently with not only the letter but the spirit of Miranda. Coercive interrogations are wrong because they’re wrong, not just because the state isn’t permitted to introduce evidence gained from them. This is why the Bill of Rights contains the Fifth Amendment rights Miranda was designed to enforce.