Why Mirandize Dzhokar Tsarnaev?

Among the many legal questions coming out of the Boston bombing case, including discussions of whether to try Tsarnaev in military or civilian courts is the issue of whether to Mirandize him and when he gets the warnings read to him.  He was assigned a federal defense attorney and finally Mirandized more than 48 hours after his caputre at a bedside hearing on Monday.  The transcript of that hearing is here.   This case has presented a teachable moment about the "public safety exception" to the Miranda warning protections.  Up to this point, most Americans did not know there were any exceptions to someone receiving the  Miranda warnings--indeed it is probably fair to say much of the public assumed Tsarnaev was or would be quickly Mirandized.

The first issue is whether Tsarnaev should be labeled an "enemy combatant" or not.  The labeling of the suspect makes a big difference in that it determines his access to legal rights and protections.  Senators Graham and McCain (R-AZ) argued that that he should be treated as an enemy combatant and therefore denied counsel at public expense and denied Miranda warnings.   In a series of tweets beginning Friday, Senator Lyndsay Graham (R-SC) endeavored to re-write the constitution.  He stated, "The last thing we may want to do is read Boston suspect Miranda Rights telling him to remain silent.'"  If he was labeled an "enemy combatant" Tsarnaev could also have been taken to Guantanamo Bay.  But Tsarnaev, it was discovered, is a naturalized U.S. citizen.  Those issues were quashed when charges were filed against Tsarnaev in federal district court, civilian courts.

The next legal issue to be decided was when and if Dzhokhar Tsarnaev should be read his Miranda rights.  The federal government invoked the public safety exception, which derives from a rape case from 1984, NY v Quarles.  In that case, a rape suspect was caught with an empty gun holster.  Out of concern of the danger posed by the missing weapon, the police questioned the suspect before reading him his Miranda rights.  Emily Bazelon has written a fabulous article explaining how the Obama Administration and Attorney General Eric Holder have stretched that public safety exception to cover terror suspects.  No courts have weighed in on whether those moves are in fact constitutional.

In practical terms, delaying the reading of Miranda rights to Tsarnaev by invoking the public safety exception means that anything Tsarnaev says even before he was Mirandized is still admissible in court.  Public safety at stake or not, make no mistake that the exception waters down Miranda protections and gives the  government and police more latitude to coerce information from a suspect, even a false confession.  Tsarnaev may well be guilty, but it is worth recalling the history of why the Miranda warnings became necessary in the first place including a long history of coerced false confessions of poor and minority suspects and the intangible benefit that Miranda warnings help build public trust in law enforcement.

One legacy of the unending "War on Terror" is that the public and the federal courts have granted extremely wide latitude to the Executive branch and its agencies to do what it deems best in the name of protecting the public.  Glenn Greenwald has repeatedly argued this point and he views the erosion of Miranda warnings in the Tsarnaev case as business as usual in the context of the War on Terror.  The public diffidence and the federal courts' silence on this issue has meant that the built in checks and balances in our political system may not always work, especially when it comes to suspects charged with particularly heinous crimes like the surviving Tsarnaev brother is.

And indeed that is in the end how rights are eroded and government power is aggrandized, by targeting a despicable suspect whose treatement will raise no public outcry.  As Bazelon eloquently wrote:

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.

One cannot help but recall Pastor Niemoeller's WWII era statement, “First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me.”

Miranda warnings and other elements of procedural justice are not to coddled the criminals; they are for the protection of  the innocent and a counterbalance to the overwhelming and disproportionate power of the state.  The state had the power to shut down mass transit, tell citizens of a major city to "shelter in their home" for a whole day, and had men and guns by the hundreds if not thousands.  What do you and I have?  We should grant suspects, however disgusting, Miranda rights and other procedural protections not as a matter of grace, but because the Constitution requires it.