Whatever your political stripe, this should alarm all Americans. Despite the fact that the government seemingly has more than enough evidence to convict Boston bombing suspect Dzhokhar Tsarnaev, we still had a national hand-wringing debate about whether to Mirandize him at all (recall those who wanted him declared and enemy combatant), and when to do so (recall members of Congress saying he was Mirandized "too soon").
Aside from Miranda (more after the jump on that), there was something far more sinister going on while the High Value Detainee Interrogation Group interrogated Tsarnaev for 16 hours as he lay critically injured in a hospital bed. The L.A. Times reports that Tsarnaev asked for an attorney several times during his pre-Miranda 16-hours of interrogation. It is appalling and unconstitutional that the government denied Tsarnaev his right to counsel when he repeatedly tried to invoke it.
There may have been a small window during which the government can - and will argue - that the "public safety exception" allowed questioning about imminent danger. (While 50 minutes has been recognized as kosher, that's quite different than 16 hours over two sessions).
While over the years I've witnessed the government bastardizing numerous rules when it comes to interrogating "terrorist suspects," this case is remarkable because it occurred so openly. Tsarnaev is accused of a violent crime. So was Jeffery Dahmer, the BTK killer, and numerous other serial murderers, whose rights we had no qualms about upholding in order to bring them to justice.
As a former Justice Department attorney, I am particularly incensed when the Justice Department abandons its commitment to justice in favor of cheating to get exact its pound of flesh.
It is unclear when, if ever, the Justice Department was going to Mirandize Tsarnaev. It was the judge who had to parachute in and read him his rights, protect the integrity of the eventual and inevitable criminal prosecution, and give him access to the lawyer Tsarnaev repeatedly asked for and was entitled to get.
Read blogger B-Maz for an excellent explication of the legal issues, one central point being that "Miranda Rights" are not some mystical rights conferred by magic words, but that Miranda warnings are words advising people of constitutional rights they already have. Every American can recite the Miranda warnings, a staple of every cop T.V. show, and perhaps that's why the warnings have little practical effect on stopping suspects' cooperation.
From the L.A. Times:
A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule.
This John Yoo-esque logic is simply wrong. The "public safety exception" allows evidence to be admitted before a suspect is
advised of his Miranda rights for a limited time. It does not authorize the government to deny a suspect his constitutionally-guaranteed right to counsel during a custodial interrogation. The Bill of Rights is not a collection of technicalities. The Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel are bulwarks of criminal justice system.
Perhaps the most frightening thing about this latest calculated Executive power grab at the expense of individual rights is the casual ease with which the government thought it could do this and get away with it, especially when the government did not even have to cheat here. The government probably did have a limited window via the "public safety exception" and even once Mirandized, the majority of suspects talk.
If we don't care about due process rights for the worst of the bad, then we shouldn't expect them for ourselves. I hope the fumes of fear don't eclipse this important point.