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DesMoinesDem

(1,569 posts)
Sat Apr 20, 2013, 08:29 AM Apr 2013

Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights?


Dzhokhar Tsarnaev will not hear his Miranda rights before the FBI questions him Friday night. He will have to remember on his own that he has a right to a lawyer, and that anything he says can be used against him in court, because the government won’t tell him. This is an extension of a rule the Justice Department wrote for the FBI—without the oversight of any court—called the “public safety exception.”

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.

...

Holder started talking about a bill to broadly expand the exception to Miranda a few months later. Nothing came of that idea, but in October of 2010, Holder’s Justice Department took it upon itself to widen the exception to Miranda beyond the Supreme Court’s 1984 ruling. “Agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents,” stated a DoJ memo to the FBI that wasn’t disclosed at the time. Again, fine and good. But the memo continues, “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.”

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.

The New York Times published the Justice Department’s memo in March 2011. The Supreme Court has yet to consider this hole the Obama administration has torn in Miranda. In fact, no court has, as far as I can tell.

And so the FBI will surely ask 19-year-old Tsarnaev anything it sees fit. Not just what law enforcement needs to know to prevent a terrorist threat and keep the public safe but anything else it deemed related to “valuable and timely intelligence.” Couldn’t that be just about anything about Tsarnaev’s life, or his family, given that his alleged accomplice was his older brother (killed in a shootout with police)? There won’t be a public uproar. Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. 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.


http://www.slate.com/articles/news_and_politics/jurisprudence/2013/04/dzhokhar_tsarnaev_and_miranda_rights_the_public_safety_exception_and_terrorism.html
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elias7

(3,976 posts)
4. Jeez, talk about second guessing before the fact
Sat Apr 20, 2013, 08:52 AM
Apr 2013

The authorities have handled this situation with incredible speed and efficiency. Why are we being so self righteous in making sure they continue to do their job well. The kid will be read his rights, after he is felt to be out of medical anger, after it has been determined that there is no need for a public safety exception.

The endless Miranda threads seem a little over the top, like us telling them what to do when they have done quite well in the last 5 days without our admonitions.

 

randome

(34,845 posts)
6. Some can't stomach the idea that LE did a stand-up job on this.
Sat Apr 20, 2013, 08:57 AM
Apr 2013

It short-circuits some brain patterns that want to believe that authority can NEVER do good.

leveymg

(36,418 posts)
5. Why should you care? Depends upon who decides what exceptions to make. That's why.
Sat Apr 20, 2013, 08:53 AM
Apr 2013

A "state of exception" is just a nice term for suspension of the Constitution during an emergency - that's why.

Welcome to DU, and what used to be called, without irony, "the land of the free."

Yo_Mama

(8,303 posts)
7. No, you're completely off-base
Sat Apr 20, 2013, 09:13 AM
Apr 2013

The Miranda protections have always worked at the time of prosecution. There is a public safety exception which allows use of information gained through unMirandized interrogations narrowly aimed at ensuring public safety. This ensures that a cop can grab a suspect who's been throwing grenades and ask him "Are there any more grenades around?" without having problems with prosecution later.

It is for the courts to judge if any prosecution based on the information gained through such questioning would be constitutional. That happens later, in court. There is nothing unconstitutional about police not giving Miranda warnings to suspects/perps, but the reality is that if they don't, and the perp says something like "the body is hidden here," the prosecution then can't use that evidence in most cases.

The public safety exception exists because otherwise police would be pretty much forced to contaminate their own investigations in order to protect the public.

If the law enforcement authorities decide that they want to interrogate this guy without Mirandizing him, they know they are taking the chance that they may not be able to introduce some or related evidence in court.

The Constitution and Miranda rights are enforced in the courts.
https://en.wikipedia.org/wiki/Miranda_warning

Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained, but may not use that person's statements to incriminate him or her in a criminal trial.


They could use those statements to find other suspects, to find dangerous materials, or to ask about motivations. However, unless it's pretty immediate and aimed at protecting the public or other LEOs, those non-Mirandized statements probably won't be admissible in court.

leveymg

(36,418 posts)
8. The basis of the Miranda warning is the 5th Amend. protection against self-incrimination and the 6th
Sat Apr 20, 2013, 09:40 AM
Apr 2013

Amendment rights to a fair trial.

I agree it works to insulate the authorities, as well, from accusations of undue force and duress in questioning. But, there is yet another reason not to Mirandize a suspect. The questions asked and the answers given can be kept off the record.

The really interesting question here is why the FBI wants to interrogate him "off the record." May I suggest that this has something to do with the brother's trip to Russia in 2011, and the FBI's interviews of the family at that time, as well as the fact that the Russians let him in even though they knew Tamarand was radicalized, and the FBI's apparent failure not to monitor the brother after his return. Looking more and more like another case of one agency not telling another what they were doing, and resulting blowback.

Yo_Mama

(8,303 posts)
10. I have been thinking that the FBI
Sat Apr 20, 2013, 09:44 AM
Apr 2013

will be asked and asking some very serious questions about the earlier clearance. They were working off evidence given to them by a foreign nation.

Still, the older brother was cleared at that time, and this again goes to show that these people were in no way persecuted in this country.

But you have to think there will be a big internal impact on the FBI's procedures because of the earlier tip and the earlier clearance.

leveymg

(36,418 posts)
12. Why assume this is yet another "connect-the-dots" failure and Tamarlan was "cleared"?
Sat Apr 20, 2013, 10:03 AM
Apr 2013

The older brother reminds me of this guy involved in the al-Qaeda circle that carried out the Cole bombing who the Bureau claimed was "under the radar" before 9/11 while he traveled internationally becoming the FBI's node of interest in the "Lackawanna 6" before he became a CIA asset, before he was finally terminated: http://journals.democraticunderground.com/leveymg/438

First Confirmed Al-Qaeda Figure Killed by Predator was a U.S. Citizen

In November, 2002, a Predator attacked a vehicle in the desert of Yemen. That is the first successful confirmed targeted-killing of al-Qaeda using remotely controlled drone aircraft operated by the CIA. Among those known to be killed was an American citizen from upstate New York named Kamal Derwish. See, http://www.washingtonpost.com/wp-dyn/conte...



In November 2002, the CIA used a Predator fitted with a five-foot-long Hellfire missile to kill a senior al Qaeda leader, Abu Ali al-Harithi, as he was riding in a car in the Yemeni desert. Also killed with Harithi, who was suspected of masterminding the October 2000 attack on the destroyer USS Cole, was a naturalized U.S. citizen, Kamal Derwish.

Derwish, it was determined later, was part of the Lackawanna, N.Y., group of Yemeni men who admitted to training in al Qaeda camps.

The CIA is permitted to operate the lethal Predator under presidential authority promulgated after the Sept. 11 attacks. Shortly after the attacks, Bush approved a "presidential finding" that allowed the CIA to write a set of highly classified rules describing which individuals could be killed by CIA officers. Such killings were defined as self-defense in a global war against al Qaeda terrorists.

The rules have been vetted by the White House, CIA and State Department lawyers. They allow CIA counterterrorism officials in the field to decide much more quickly when to fire, according to former intelligence officials involved in developing the rules.




Yo_Mama

(8,303 posts)
13. Because the FBI has said that he was cleared
Sat Apr 20, 2013, 10:18 AM
Apr 2013

If you are alleging that the FBI was lying, that's your right but I think it is quite a stretch at this point.

The foreign government involved was almost certainly Russia. I would not want American residents/citizens harassed solely on the basis of information given by a country with its bad current and past history regarding civil rights.

leveymg

(36,418 posts)
14. What else are they supposed to say?
Sat Apr 20, 2013, 11:00 AM
Apr 2013

I don't think it's at all a stretch to assume that there was multiple USG agency, as well as international interest in Tamaran once the Russians made their inquiries -- and, most significantly, let him into Russia.

In fact, I'm 100% certain there would be a great deal of interest in such a person before, during, and after his travels. Don't you think so, too?

Yo_Mama

(8,303 posts)
9. Aside from the legal points, my second argument with this OP
Sat Apr 20, 2013, 09:41 AM
Apr 2013

Is that I think it is somewhat ridiculous to be claiming that the offender's rights have been violated at this point.

Not only did all concerned do a great job of investigation during a very short period of time, the individuals involved in this man's capture took some very high personal risks in order to capture him alive. Then they secured him, knowing that he could still be booby-trapped, and then he was promptly given emergency medical care and taken to the hospital.

At the time that he was being captured and secured, the immediate priority would have been to ensure that letting EMTs at him would be safe for the EMTs and that he could be transported to the hospital and safely taken into the ER without endangering the medical staff. Any questioning at that point would have been of the variety of "Are you carrying explosives", and not only would be aimed at protecting others, but protecting the life of the suspect. Therefore Miranda warnings do not come in at all at that point.

It's pretty clear that he was in bad condition at the time of the arrest, and it is not even clear that a Miranda warning given before he is medically stable would be legally valid. A Miranda warning given when a person is not in condition to understand the warning can be disputed in court and the courts would generally strike evidence if the actual interrogation occurred later.

In other words, if the cops receive a report of an erratic driver with a car with multiple occupants out on a rural road in the middle of the night, and the cops arrive on the scene and find a car rammed into a telephone pole with one driver slumped at the wheel who appears stinking drunk, the cops can Mirandize him at that point and ask if anyone else was in the car, because they want to make sure that they don't have some injured person staggering around in a field. But because he was drunk, if they show up in his hospital room the next day to ask for more information, they cannot rely on the Miranda warning at the scene and must give it again if they are going to use any of his statements, or evidence produced from his statements, in a court prosecution.

It's not in clear that the suspect has yet been interrogated by any LEO in any meaningful way, and when he is so interrogated, at that point one would assume that the Miranda warning would be given if the information were to be used in his prosecution. So screaming that the cops didn't stand over him and read him his Miranda rights as he was strapped to the gurney on oxygen is really rather ridiculous.

By the way, the legal derivation of the Miranda warning is from the Fifth and Sixth Amendments,
http://www.law.cornell.edu/constitution/billofrights#amendmentv

and thus it does not pertain to gathering information about other perpetrators. The protection is against self-incrimination.

Baitball Blogger

(46,576 posts)
11. When you have a high profile case like this one, where we watched practically every
Sat Apr 20, 2013, 09:52 AM
Apr 2013

developing moment, the public safety exemption makes sense.

But, I agree in a right-wing administration where every dark-skinned citizens already lose constitutional rights in the the eyes of those who think profiling is just part of good detective work, I wouldn't be so confident.

 

kestrel91316

(51,666 posts)
15. They aren't going to get much questioning done in the 48 hours
Sat Apr 20, 2013, 11:16 AM
Apr 2013

before they must Mirandize him. He's in the hospital.

brett_jv

(1,245 posts)
16. I say if we had to mirandize Jeffrey Dahmer and John Wayne Gacy ...
Sat Apr 20, 2013, 01:43 PM
Apr 2013

Then we have do the same for this terrorist dirtbag.

If you gave me a gun and put this kid and Gacy in front of me and said you have to kill one of these guys, the other gets to go free ... it would take me all of about .5 seconds to decide before Gacy's brains were splattered on the wall behind him. I'm certainly not trying to cut this scum a break or anything, simply saying these types of people do not qualify as the 'worst of the worst' in my book.

In other words, IMHO, we are obliged to extend this constitutional right to everyone (at minimum, every citizen) no matter HOW egregiously evil we believe their acts to be. It's a bedrock, fundamental part of our principles as a country, and it should NOT be abandoned except under the conditions set forth by the Founders.

This all being said, as others have said above, I'm not being critical of the actions taken by LE here. The kid by all accounts was near death, and there was a legitimate immediate public safety concern. In fact, I can't even CONCEIVE of a scenario where this 'clause' could be more relevantly applied.

But once it's determined that the kid is well enough to understand what he's being told, and that any immediate threat to public safety is alleviated, I firmly believe he should be read his rights ... and I'm hopeful (perhaps even confident) that he will be at that point.

I also firmly believe he has a right to a standard criminal trial by jury (unless he pleads out of course), not some secret military tribunal. It's one thing when we pick up some Pakistani National running around Afghanistan shooting at soldiers ... it's something entirely different when a US citizen attacks us on our own soil. It's a criminal act, that should be tried in criminal court.

Period.

Like the article suggests, to abandon these principles is a slippery slope indeed.

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