Slate – by Emily BazelonWhen the law gets bent out of shape for him, it’s easier to bend out of shape of the rest of us.
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 of the rest of us.
Here’s the legal history. In the 1984 case New York v. Quarles, the Supreme Court carved out the public safety exception for a man suspected of rape. The victim said her assailant had a gun, and he was wearing an empty holster. So the police asked him where the gun was before reading him his Miranda rights. That exception was allowable, the court said, because of the immediate threat that the gun posed.
Fine. Good, even—that gun could have put other people in danger. Things start to get murkier in 2002, after the FBI bobbled the interrogation of Zacarias Moussaoui, the 20th 9/11 hijacker—the one who didn’t get on the plane—former FBI special agent Coleen Rowley wrote a memo pleading that “if prevention rather than prosecution is to be our new main goal, (an objective I totally agree with), we need more guidance on when we can apply the Quarles ‘public safety’ exception to Miranda’s 5th Amendment requirements.” For a while, nothing much happened.
Then the Christmas Day bomber, Umar Farouk Abdulmutallab, was apprehended in December 2009, before he could blow up a plane bound for Detroit. The FBI invoked the public safety exception and interrogated. When the agents stopped questioning Abdulmutallab after 50 minutes and Mirandized him—after getting what they said was valuable information— Abdulmutallab asked for a lawyer and stopped talking. Republicans in Congress denounced the Obama administration for going soft.
Next came Faisal Shahzad, caught for attempting to bomb Times Square in May 2010. He was interrogated without Miranda warnings via the public safety exception, and again, the FBI said it got useful information. This time, when the suspect was read his rights, he kept talking. But that didn’t stop Sen. John McCain and then Sen. Christopher Bond from railing against Miranda. “We’ve got to be far less interested in protecting the privacy rights of these terrorists than in collecting information that may lead us to details of broader schemes to carry out attacks in the United States,” Bond said. “When we detain terrorism suspects, our top priority should be finding out what intelligence they have that could prevent future attacks and save American lives,” McCain said. “Our priority should not be telling them they have a right to remain silent.”
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.
Currently in the UK we have a “rights breaking” attempt by Theresa May going on in the regards to Abu Hamza who the government are holding up in public as “evil Muslim enemy number 1” and doing it such a way that the great unwashed are screaming for blood and not caring how they get it either.
What the British people by and large do not understand is how mission creep works, that by bending the rules once is enough to break them for good and if they are willing to bend the rules for Abu Hamza who has not committed a crime in the UK and no evidence of beyond a reasonable doubt has been placed prima facie to the British people by the Jordanian government and that what evidence they have produced has been proven to have been acquired by torture, we go from a state of expected rule of law to selective rule of law in one go and explaining this to people is hard work.
When governments target their own citizenry, what we see is a situation where the target list is ever growing, first they came for the Jews and no one spoke up for them goes the old poem but THAT is exactly what happens, could you imagine 20 years ago the US government openly and flagrantly operating basically an anti-legal operation in Guantanamo Bay as it is today?
Justice cannot be a grey area, it can only ever be black or white, either your people are receiving justice or they are receiving injustice, justice is not that which is bought by politicians and corporations, it is the justice of the land, of the people, for the people, businesses and politicians are servants of the land and the people. Our nations signed treaties and enshrined in law these very rights and justices and now are seeking means to bypass them for their own perverse use against the people and this folks is where we need to take back our justice to where it is, not to some bribed and paid for Judge chosen because he has more money, a member of the Freemasons and can be trusted to protect those in the funny handshake club, he should be chosen for a proven impartiality, an ability to dispense justice equally to the man in the street or the man in power or with money and that his punishments are equal for all as are his judgements.
Britain is embarking on a government led crusade to bring in secret trials for a whole swathe of legal applications and their purpose is suspect, a simple legislation making it illegal to name or identify an agent of the state say intelligence or military would have been enough but Britain seeks instead to protect its agents by withholding public scrutiny from the legal doings of these agents forcing the court cases into secrecy, our law and police were once the envy of the world and the blueprint that other nations held their aspirations up to, now our law and police are the envy of banana republics and dictatorships and its a sad state when people in China or Russia are deemed to receive fairer trials than those in the US or UK.
This however is all part and parcel of the move by the “elite” to break true democracy because they realise that a true democracy may leave them exposed to the masses who may in time move to break their stranglehold, this is why they are dumbing down the masses, flooding television with mind numbing pap and removing investigative journalism and freedoms of the press, we are moving into a new era of benign dictatorships in the West and we are sleepwalking into it as well.
Of course no lawyer will touch this case for fear of never working again. this poor kid is what you call “RAILROADED”. His brother is dead, and it will be a miracle if he lives another 48 hours. Everyone who knew him says he was a great guy, up and coming star wrestler with scholarships.
I just hope the sheeple can see the wool within the forest. We are about to piss of mother Russia if this shit goes in the NWO direction it looks like it’s going. Christ the whole world is going to hate us soon.
Yep Mark, it would realy suprise me too if he lives to go to court. They will badger him with interogation and then he will die…………. Hell Mark most of theworld dislikes america anyway.
or drug him so he is pretty much a vegie. Either way no one will get to see him or interview him. He is dead either way.
Mother & Father Of Boston Bombing Suspects Speak Out! Boston suspect’s mother: “He was counseled by FBI for three, five years”
http://www.youtube.com/watch?v=Wh10h8A_w8Q&feature=youtu.be
If it’s true that he was working for the FBI for years, he got (or will be getting) what he deserves.
And let that be a warning to any rats who decide to work for the dark side. They’re just going toss you in the trash when they’re done using you, and then you’ll have Patriots to answer to as well.
While I deprecate the Quarles decision (as yet another exception that swallows the rule), the fact the government has self-servingly availed itself of this exception to the Fifth Amendment is at least a recognition by it, so far, that Bill of Rights guarantees apply to the suspect. Contrast that with the braying of Senators McCain and Graham that the suspect be accorded no more than the tender mercies of Gitmo. They should not, therefore, be later heard to deny other Bill of Rights protections to this man.