The Boston bombers and civil liberties

[ProSense]

On one hand, there are arguments rejecting the decision not to read the captured suspect his Miranda rights. On the other hand, there are arguments that the FBI should have tracked an individual cleared of any suspicion. The fascinating thing is that these arguments are being made by some of the same people.

The public safety exception is being applied consistent with existing law. Here is a 2010 opinion exploring its application in cases involving terrorism suspects.

Constitutional law already permits law-enforcement officials to question a suspect in custody, without Miranda warnings, if public-safety considerations justify doing so. For at least 25 years, it has been clear that law enforcement does not have to provide Miranda warnings before asking a suspect questions that, as the Supreme Court has put it, are “reasonably prompted by a concern for the public safety.” Thus, if the FBI captures a suspected terrorist bomber, and has grounds for concern that other attempted bombings might be in motion, the FBI can non-coercively interrogate the suspect for information about those other suspected plots without giving the suspect Miranda warnings. One crucial consequence is that any statements the suspect makes during that questioning that also incriminate himself can be used against him in a later criminal prosecution.

Yet the Court has recognized and elaborated the public-safety exception in cases unlike many of today's terrorism cases, and thus the boundaries of the exception in the terrorism context remain unclear. When the FBI or other government agencies capture a terrorist suspect, they will often want to question him or her for two related, but different kinds of purposes: (1) for information that will protect the public against any immediate security threats and (2) for more general intelligence about others who might have assisted the suspect in the (completed or attempted) act of terrorism for which he has been apprehended, about the nature and organization of the terrorist groups he or she is associated with (if any), and the like. While the public-safety exception permits pre-Miranda questioning for the first purpose, how that exception applies to this second purpose is far from clear.

- more -

http://balkin.blogspot.com/2010/05/should-congress-codify-public-safety.html

The first purpose is definitely how this is being applied.

DOJ Official: No Miranda Rights For Boston Bombing Suspect Yet

A DOJ official explains why Boston Marathon bombing suspect Dzokhar Tsarnaev has not been read his Miranda rights.

"The suspect is en route to the hospital for immediate treatment," the official tells TPM's Sahil Kapur. "But we plan to invoke the public safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence."

The public safety exception allows law enforcement officials to question suspects briefly in a legally admissable way prior to providing Miranda rights in cases of terrorism or when the public might face imminent threat.

http://livewire.talkingpointsmemo.com/entry/doj-official-no-miranda-rights-for-boston-bombing

As for wanting the FBI to track the brother who interviewed in 2011 and cleared, the argument implies that someone found to have no connection to any crime or extremism should have been tracked indefinitely.

Let's get Lindsey Graham and Rand Paul on the case right now.

In fact, maybe Congress could get around to passing a law that when someone is identified as a suspicious, but cleared, they should be labeled suspicious indefinitely and spied on in case they commit a crime.

The FBI should release the details of the interview and the extent of the inquiry. In terms of eroding civil liberties, I find it fascination that anyone would want the government to simply target someone because it was suggested that the person might be suspicious, and then go even further by tracking the person after the individual is cleared of any suspicion.

It would be one thing if they found a connection, but that evidently did not happen.

[malaise]

1. Here's a question I read elsewhere

Since the FBI had been keeping tabs on the older one, why weren't they able to identify him?
Isn't his photo already on file?

[Skidmore]

2. My guess is that they were more interested in sightings and his location

and probably already knew his id.

[malaise]

3. Well they would have had a better photo of him for the public

[ProSense]

4. The point is

"Since the FBI had been keeping tabs on the older one"

...that it doesn't appear that they were "keeping tabs" on him. He was cleared and the file closed.

[Heather MC]

5. Allegedly keeping tabs, I only heard his mother said that.

His father said his was famous as a boxer, and his Uncle called him a loser.

Has the FBI confirmed they were "keeping tabs" on him?