Why did the Department of Justice make this announcement?
"The suspect is en route to the hospital for immediate treatment [...] "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."There was no legal obligation to do so that I know of. Indeed, I would argue that the DOJ would have a very compelling tactical reason NOT to announce this -- you would not want potential 'terrorist cell' members to know precisely how you are handling the interrogation of the Boston terror suspect.
As Gary Norton explained, the issue regarding Mirandizing suspects is, in most instances, an evidentiary one. which goes to the exclusion of statements made by a suspect. Whether a proper Miranda warning was given becomes an issue only if the government seeks to introduce such statements into evidence. As Chief Justice Rehnquist wrote in Dickerson v. U.S.:
In Miranda v. Arizona, 384 U.S. 436 (1966), we held that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted in evidence. [...] We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.So when would the government have to announce whether a suspect was Mirandized or not? Perhaps never. So why did DOJ do it here? (Indeed, given what appears to be an overwhelming body of evidence against the Boston terror suspect, the need for ANY statements from the suspect for criminal prosecution purposes seems extremely unlikely.)
My sad conclusion is that it was a political decision to make the "Not Mirandizing" announcement. There was no legitimate national security or law enforcement purpose to the announcement. (Indeed, as stated earlier, I believe a very plausible case can be made that national security concerns would militate against giving ANY information regarding the interrogation of the Boston terror suspect.)
So what was the political calculus behind the announcement? (Also who was involved in the decision?) Unfortunately, we have seen a pattern of behavior from the DOJ (and the Obama Administration) with regard to showing how "tough" they are on terror suspects. Most notably, in December 2010, the existence of a Department of Justice memo on interrogating terror suspects was leaked. In early 2011, the memo itself was leaked. What could they motivation have been? Maybe this:
The practice of reading Miranda warnings to terrorism suspects arrested in the United States has led to political disputes. In particular, Republicans, seeking to portray the Obama administration as soft on terrorism, criticized the reading of a Miranda warning to the main suspect in the failed bombing of a Detroit-bound airliner on Dec. 25, 2009.These controversies led the Attorney General to support weakening Miranda even further:
[I]n May 2010 Attorney General Eric H. Holder Jr. floated the idea of seeking legislation that would ask courts to interpret the public safety exception to allow lengthier questioning of terrorism suspects before the warning. The administration never produced such a proposal. But the October memorandum shows that the Justice Department.Prior to the President's reelection, these types of noises from the Obama Administration were politically understandable (especially as they came before the killing of Osama bin Laden), if not defensible. But what about now? The election is over.
There is, in my view, a certain irony that President Obama gave one of his most fiery press conferences in the wake of the defeat of the gun control bill in the Senate. At that appearance, the President said:
“It came down to politics[.]”I submit that the Department of Justice's announcement that the Boston terror suspect was not Mirandized also "came down to politics." And I do not think "the politics" is defensible.
The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial.As Justice Marshall noted, there was no reason for the contortions and gyrations. Miranda does not preclude un-Mirandized questioning, just the introduction of compelled testimony. Justice Marshall continued:
The results of the majority's "test" are announced with pseudoscientific precision:The recurrent argument about the "War on Terror" domestically is that our Constitution and our criminal justice system and its rules are inadequate to the task at hand.
"We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." Ante, at 657.The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, see 384 U.S., at 504, 516-517, 86 S.Ct., at 1643, 1649-1650 (Harlan, J., dissenting), the Miranda Court refused to allow such concerns to weaken the protections of the Constitution[.]
"A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged." Id., at 479, 86 S.Ct., at 1630 (citation omitted).
While the Department of Justice does not wholly endorse the end result that the likes of Lindsey Graham and John McCain seek (Gitmo for every "suspect!"), they DO endorse the idea that our Constitution is not up to the task.
Whether that position is a sincerely held one or merely a political pose, I can not say.
But in either case, I condemn it.