Subscribe via RSS Feed

Why Tsarnaev Should Be Read His Miranda Rights

[ 102 ] April 20, 2013 |

Since several commenters are suggesting that we shouldn’t care about whether Tsarnaev is read his Miranda rights, it’s worth explaining why we should care.  Emily Bazelon is good on this, but let me add a couple points.

It is true that, in a narrow sense, the federal government is free under Miranda to interrogate Tsarnaev without informing him of his rights if it believes it has enough independent evidence to convict him.   But this is not the only consideration.   Miranda does not require us to be indifferent about the distinction between coercive and non-coercive interrogations, and indeed its logic suggests that we shouldn’t be.  Earl Warren, to his great credit, did not believe that there was a inherent contradiction between professionalism and the respect for the rights of the accused and crime control.  The local authorities that relied on coercive interrogations and didn’t follow professional procedures weren’t more likely to convict criminals, although they were more likely to convict the innocent.  Miranda reflected this belief, and the intent of the rule was to inhibit coercive interrogations, because coercive interrogations were both wrong in themselves and produced unreliable information.

To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda — sends the opposite message.   It’s the message of the previous administration — i.e. that the rule of law and the “war on terror” are incompatible, that slapping the label “terrorist” on a suspect means that professional procedures that respect the rights of the accused can’t work.   This isn’t right  — it’s wrong in terms of the values it represents and it’s wrong in terms of the underlying assumption that less respect for the rights of the accused means more effective crime control.  The appropriate course of action is for Tsarnaev to be treated like any other criminal suspect, consistently with not only the letter but the spirit of Miranda.  Coercive interrogations are wrong because they’re wrong, not just because the state isn’t permitted to introduce evidence gained from them.  This is why the Bill of Rights contains the Fifth Amendment rights Miranda was designed to enforce.

…more here.

Comments (102)

Trackback URL | Comments RSS Feed

  1. Julian says:

    I clearly see why coercive interrogations could be very bad and abusive, and could bleed into bad practices affecting people besides just suspected terrorists.

    However, where do you locate the right against coercive interrogation that doesn’t result in the admission of incriminating statements derived from said interrogation? Also, how are you defining coercive interrogation? What should the remedy for coercive interrogation that doesn’t result in the admission of incriminating statements derived from said interrogation be?

    • Scott Lemieux says:

      However, where do you locate the right against coercive interrogation that doesn’t result in the admission of incriminating statements derived from said interrogation?

      What do you think the Fifth Amendment was intended to accomplish?

      • Julian says:

        No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

        Which part of the fifth amendment?

        • Scott Lemieux says:

          What part do you think we’re discussing — the takings clause? When people say they’re “taking the fifth,” do you think they’re asserting their right not to be tried without a grand jury indictment? (Christ, it’s like the third-string junior high debate team got released early around here.)

          • Julian says:

            Okay, so you’re saying

            “nor shall be compelled in any criminal case to be a witness against himself”

            confers a right against coercive interrogation that doesn’t result in any testimony admitted against you?

            • UberMitch says:

              Why don’t you give Miranda a good long read and get back to us. Dickerson is also instructive.

            • Scott Lemieux says:

              Again, what do you think the prohibition against compelled self-incrimination is intended to accomplish? Are you seriously arguing that it reflects indifference about coercive interrogations and is just a sort of random ipse dixit?

              • Dilan Esper says:

                Scott, you are fighting the good fight here. It’s scary how little otherwise intelligent people understand about basic constitutional principles.

              • Arouet says:

                I was arguing with a guy who thought nullification was still an open debate, or even resolved the other way, yesterday. There’s just no point, they’re impervious to reason.

              • rea says:

                I’m a bit nonplussed by your position. You don’t have a constitutional right to remain silent, exactly–you have a right against self-incrimination. It’s very common, for example, to compel the testimony of a witness when it does not incriminate him or her, and to remove the potential for self-incrimination by a grant of immunity, even over the objection of the witness to receving immunity. If you won’t testify under such circumstances, you can be jailed until you do–and there are instances of people being jailed for years for this reason (it’s not punishment–it’s compelled obedience to court orders). That’s how the Constitution works, and I don’t know of any Supreme Court Justice in history–not Brennan, not Marshall, not Douglas, none–who ever suggested otherwise.

                What is the penalty for violating Miranda? Why, it’s exclusion of the evidence obtained by the violation. So, necessarily, if the prosecution doesn’t care to use the testimony, there is no penalty for not giving the Miranda warnings.

                And, I sincerely hope, nobody will call me a wimp on civil liberties for taking this position–this is me with my criminal defense lawyer hat on, telling you what I would tell my clients if they comnplained about not being given Miranda warnings–it only matters if you made a statement that the prosecution proposes to use against you.

                • Peter Hovde says:

                  Rea is absolutely correct. Miranda held that self-incriminating statements (i.e., statements entered into evidence against the speaker) obtained through custodial interrogation without the requisite warnings are deemed compelled for 5th Amendment purposes, regardless of whatever additional coercive elements might be involved. Miranda said nothing about statements which are not entered into evidence against the speaker.

                  Above and beyond the actual text of the 5th Amendment, which does specifically concern self-incrimination, the distinction between self-incrimination and incrimination of others is not based on a mere “ipse dixit,” particularly in the context of interrogation. Since the default rules of evidence provide that a person’s out-of-court statements are admissable against that person, but not against others, it makes sense for courts to apply particular scrutiny to, and to provide particular rules for, interrogations by which self-incriminating statements are obtained, because out-of-court self-incriminating statements can, absent such scrutiny, be introduced directly into evidence.

            • Heron says:

              So you’re saying As long as they just torture you for kicks, it’s entirely fine with the 5th amendment.

              • Anon21 says:

                If the torture doesn’t extract a statement later introduced against you, I don’t see how it could conceivably violate the Self-Incrimination Clause. It might violate a substantive-due-process right, but that doesn’t seem to be what anyone’s talking about here.

                • Arouet says:

                  Also, you know, federal law, international law, etc., etc…..

                • Anon21 says:

                  Yes, certainly. My point was that Miranda warnings don’t have anything to do with torture, even though the Miranda decision was motivated in part by concerns about torture. The right not to be tortured subsists outside the Self-Incrimination Clause.

    • Anonymous says:

      WTF? What part of the concept of no person being required to be a witness against himself do you not understand?

      Oh, never mind. I’m supposed to be working. Guess I should look for something to do!

    • Heron says:

      Let’s approach this from another angle; where in the Constitution is any branch of the government given the explicit right to hold persons without charge, without trial, to compel confession from persons through physical violence, isolation, withholding of medical aid, manipulation of chemical dependencies and threats levied against their family, or punish persons for not providing the statements they wish them to? Where in the Federal Constitution is any branch of the government given the right to allow itself or another Branch that power? Where in the Federal legal code is that law? The Federal Constitution directly and clearly lays out the powers and responsibilities of the Federal government, the State Constitutions do the same for the States, so I ask you; Where in the US legal system is the Federal Government or the States granted the right to extract confessions from persons it holds, for any reason?

      The entire idea that not Mirandizing changes somehow the rights-status of someone detained is ridiculous in itself, without even discussing the Constitution. It isn’t even basically logical. “Inalienable Rights” are rights that cannot be separated from you. Whether someone is Mirandized or not has absolutely no bearing on their right to not incriminate themselves; what Miranda does is tell cops “no, you can’t torture people for confessions and get convictions”. It protect prosecutions from various BoR challenges which would arise from doing so. What weakening Miranda does is loosen the standards prosecutions and investigations are held to, meaning more innocent people get arrested, more innocent people get confessions tortured out of them, more innocent people go to prison, and more cases end up in front of judges who, if they decide to start behaving ethically of a sudden (HA!), can throw them out on procedural grounds (not that it would really help considering how easy it is for Prosecutors to court-shop these days). The only ways in which it protects the rights of the people is that having to read it reminds police officers of what they are and are not allowed to do, and hearing it gives at least some small assurance that those arrested won’t immediately fall foul of our legal system’s moronic policy that a person can 1) choose to not have rights, 2) do so passively out of ignorance by not insisting on them and 3) have their rights violated if the information gleaned from doing so is judged important enough by the person doing the violating. The “Public Safety Exception” in this specific case is even more of a farce, considering that the police raised the curfew the minute they had the guy cuffed; an on-its-face admission that any potential threat to public safety was ended.

      Torture and potential torture which is not meant to extract confessions for prosecution, which is to say non-Miranda interrogations carried out with no intention of using the statements received in court, is a “cruel and unusual punishment” -torture as punishment- and is prohibited directly by the 8th Amendment. It is this because torture and “coercive interrogation” has repeatedly and objectively been shown to produce not truthful statements, but whatever statements the torturer or interrogator wants. They are, objectively, not methods of investigation but rather methods of coercion, domination, and punishment. Their place is not anywhere in an attempt to find out who committed a crime. Their place is only in trying to make someone -anyone- admitted to committing a crime; any crime.

      Carried out without a warrant, it’s also a direct violation of the 4th Amendment’s gaurantee that “the people … be secure in their persons” against unreasonable searches and seizures without said warrant as an interrogation carried out without lawful reason is literally “unreasonable” and it is certainly a search; albeit one of words, manipulation, and potentially blows. It’s a violation of the 6th in that it assumes guilt and applies punishment outside “a speedy and public trial, by an impartial jury of their peers”, without the individual being informed of the “nature and cause of the accusation”, and without being “confronted with the witnesses (the evidence) against him”. It’s a violation of the 5th in that it deprives them of their “liberty” -which is a medieval and renaissance technical legal term which means “freedom of travel”- and their “life” -a term which necessarily includes physical and mental health and before you argue that explain why the US government is barred from intentionally driving you insane in prison- without due process of law; in that it holds a person who is not a member of the military or the militia to answer for a capital crime without indictment, an act made doubly illegal by doing so outside a time of war or public danger; and in that it compels them to be a witness against themselves which is flat-out prohibited in all instances by the 5th (and yes even when they are asked about accomplices; admission of criminal accomplices is necessarily an admission of criminal behavior, as well as necessarily admission of association with criminals which is itself a crime in certain circumstances [for instance, terrorism] and thus testimony against yourself).

  2. Joe says:

    You’re dishonest when you say that people were saying that we shouldn’t care. We simply pointed out that you misstated the law with your typical arrogance.

    You say “To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda…” Is anyone suggesting that the government do that?

    I think you’re playing fast and lose with the facts for your own political reasons.

    • Scott Lemieux says:

      We simply pointed out that you misstated the law

      Please to be citing where I misstated the law. I clearly acknowledged the emergency exception to Miranda.

      You say “To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda…” Is anyone suggesting that the government do that?

      Here’s someone named “Joe”:

      It’s only problematic if they are trying to do an end-run around a constitutional right-if they care more about finding other people than hanging this guy with his own statements it’s a perfectly legal and valid move.

      • David M. Nieporent says:

        Because your statements were couched in generalities, perhaps you did not affirmatively misstate the law, but you’ve certainly written statements that imply you don’t understand the law. You’ve implied that someone has the right to be Mirandized, which is not the case. Miranda is about the admissibility of statements made during custodial interrogations, nothing more. Quarles — the safety exception to Miranda — is about allowing such statements to be used despite Miranda; it’s not about whether someone can be interrogated at all. Police are free to interrogate people without Mirandizing them without violating their rights.

        So when you write, “The public safety exception to the Miranda requirement is real, so whether Tsarnev’s rights have been violated will depend on the details,” that’s not right. Tsarnaev’s rights haven’t been violated, and can’t be violated unless and until they attempt to introduce something he has said at trial. Only then do we need to decide whether Quarles applies.

        (Since people here like to aggressively misinterpret what people they dislike say, I should clarify that when I say his rights haven’t been violated, I’m referring to the topic of this thread — his fifth amendment rights against self-incrimination — rather than the entire panoply of rights that could potentially be violated.)

    • elm says:

      I’m still not sure what Scott “misstated.” He said whether Tsarnaev’s rights are violated “depends on the details,” which you seem to agree with. He also said that not reading him his Miranda rights are “problematic” and “unacceptable,” but did not say they were violations of his legal rights. He clarified in the thread and here that they are problematic and unacceptable from a broader perspective even if narrowly allowed under Miranda.

    • joe from Lowell says:

      Is anyone suggesting that the government do that?

      Eric Holder’s efforts to expand that exception to non-emergency situations and non-imminent threats looks an awful lot like such a suggestion.

  3. bradp says:

    The haphazard details of their attack and subsequent non-flight from justice leads me to believe the emergency began and ended with the Tsarnaevs.

    I don’t believe the emergency exception holds much weight beyond Dzhokhar’s capture.

    • Dilan Esper says:

      It doesn’t. And that’s why the war rhetoric Greenwald harps on is so dangerous.

      It gives hawkish types an erection to say we are at war. But we are actually dealing with criminals and policework works fine. Perhaps 9/11 itself was an exception, because a limited invasion of Afghanistan was necessary to get the guys who did it, but once you turn your law enforcement issues into wars it becomes very hard to stop doing it.

  4. joe from Lowell says:

    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.

    Ironically, it can’t be used against him a court of law. We’ve created a Schroedinger’s Cat situation. Only making the suspect aware that his statements can be used in court allows his statements to be used in court.

    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.”

    OK. If this is the case, and we’re not talking about an immediate or imminent threat, then there should be ample opportunity to get a judicial official onto the scene to keep an eye on things and make sure the interrogation is properly limited and the treatment of the suspect non-abusive.

    Anyway, this article made the connection between this exception and military detention and trials clear. They can’t use statements made prior to Miranda in a real court, but they could use them in an executive decision-making process about indefinite detention, and possibly in a military trial. Since Holder and Obama are so clearly against military detention and trial, that’s obviously not their motive, but it helps to explain McCain and Graham.

  5. Richard says:

    My take is that they should inform him of his rights as soon as he recovers from surgery but that, in this particular case, the reading of his rights will have no practical effect. They will not need his statements to convict him. And this kid – bright and thoroughly Americanized – has already made up his mind whether he is going to talk or not. He isn’t going to hear those words and suddenly realize he has a right to stay silent. He already knows he doesn’t have to talk and well see fairly soon whether he talks or not. Reading the Miranda rights, which they should do, will have no effect on his decision

    • Scott Lemieux says:

      Which is all the more reason to do it.

      • Richard says:

        I agree. The only quarrel I have with you on this issue is the assumption that reading Miranda rights has any practical effect at all in a case like this ( or in the great majority of cases).

        • Scott Lemieux says:

          Although if the lack of practical effect is because Miranda rights are already so ubiquitous is in the culture, this is in itself an effect of Miranda.

          • Richard says:

            That’s true. Because of Miranda and the undying popularity of cop procedural shows, most everybody knows that you don’t have to talk to the cops. But the consequence of that is that there is less need to give the warning to habitual criminals, the highly educated or to devoted followers of CSI. The purpose of Miranda is to let people know they have a right to remain silent. If they already know that, there is no reason to tell them that. Despite this, I think it still makes sense to have a bright line requirement to give it even though it accomplishes nothing in the overwhelming majority of cases

            When I practiced criminal law, numerous clients would tell me that their rights had been violated because they had been arrested but not given Miranda warnings. I would then ask them what they had said to the cops after being arrested. They would tell me that they had not said anything, that they knew enough not to talk to the cops. I would then have to explain to them that their Fifth Amendment rights had not been violated

            • Arouet says:

              Just curious – we were debating this in my criminal procedure class the other day, but I’d love to hear from someone with practical experience – do you ever find that it’s the other way? That well-educated or experienced suspects know their Miranda rights and make incriminating statements despite that due to the pressures of the interrogation environment?

              We were citing that as one of the main reasons to keep Miranda a bright-line test and not take into account the circumstances, but if it doesn’t happen…

              • I’ve done it– I’ve actually blew it once when I was pulled over. “Do you know why I pulled you over?”
                “Was it because I was on my phone?”
                “No, it was because you were speeding, but I’ll write you up for the phone too.”

                • giotto says:

                  NEVER tell the cops ANYTHING. When they ask “Do you know why I pulled you over?” always say, “No sir, I do not.” Anything you say WILL be used against you.

                • cpinva says:

                  the correct response is: “gee officer, i have no idea.”

                • rea says:

                  Although Miranda does not apply to the type of roadside encounter you describe

                • Pho says:

                  That’s not blowing it, that’s raising the price of the ticket. Blowing it sounds like this:

                  “Miss, do you know why I stopped you?” at mid-morning on the freeway in Oakland, where I was being passed on a hill by 3 cars full of young men who were racing.

                  “Um…because you’re pretty sure I’m not armed?”

                  That was the wrong answer, if you’re keeping score at home, and won me a complete cleaning of my Honda Civic wagon, which was stripped to the carpet and sniffed by canines. Plus traffic school!

              • Sophia says:

                I suspect the most effective pressure in an interrogation environment is the social conditioning that innocent people cooperate with the police. Keeping your mouth shut is “acting guilty” and the shame and disapproval a person would feel in that moment (exercising right to be silent) is far more likely to guide their actions than an awareness of a far off jury instruction that their silence can’t be held against them.

                Talking to the police is “acting innocent” and the innocent and guilty alike think they can talk their way out of the situation. It’s impossible to overstate how much law enforcement benefits from this, and it’s not only perfectly legal, but the cultural factors that create it would be slightly easier to dismantle than racism.

                • Pho says:

                  This is particularly true of the young. I can’t imagine that this kid, who knows from watching TV that he has a right not to talk, will be able to resist talking. Especially after they tell him that it took an hour for his brother to die from being hit by a car…that he was driving.

                  Interrogating this suspect is so easy I can do it from here, which is why the suggesting that waterboarding is needed is more repugnant than I can say. The only function of presenting him ASAP is to assign him a lawyer, who will then tell him to shut up, but nothing he’s said before that will be admissible anyhow…unless he was Mirandized when he came around. Which is why that’s the best idea technically as well as ethically.

              • Richard says:

                People suspected of crime, even though they know they have no obligation to talk to the cops, talk to the cops all the time. They do it for a variety of reasons – they hope they can convince the cops to go away, they think being silent shows guilt, they think they will get favors from a cop, etc. Its almost always not in a suspects best interest to do so but it happens all the time.

                • janastas359 says:

                  This is the flip side to “cop shows help spread the knowledge of Miranda rights.” Cop shows also spread the idea that only guilty people get lawyers, go silent, etc.

                  As they say on tvtropes, if you get arrested and you’re guilty, shut up and get a lawyer. If you get arrested and you’re innocent, shut up and get a lawyer.

    • CJColucci says:

      I’ve always had a somewhat different take on Miranda — that it is a kind of magic fairy dust the cops can use to cover dodgy interrogations.
      It has long been the law that an involuntary confession, such as one extracted by torture, is inadmissible. But when we get away from the obvvious types of coercion, we start seeijng claims for more subtle types of coercion, and nobody wants to start throwing out confessions all over the place based on subtle, if effective, coercion.
      So what do we do? We give the cops a magic formula that they can recite before engaging in the kinds of non-obvious coercion that they must be using or you wouldn’t get as many morons confessing as do. In short, Miranda protects the cops, not the criminals, who probably could recite it in their sleep from the cop shows anyway.
      So why not Mirandize the alleged bomber? He probably already knows and understands his rights as well as the average felony arestee, whether Mirandized or not, so sprinkle the magic fairy dust and have at him.

  6. Mike Schilling says:

    If there were others involved in the bombing, and they’ve got more bombs, the emergency rule applies, because there is an imminent threat. Use all the scare quotes you like, but committing mass murder in random public places is different from robbing banks.

    • joe from Lowell says:

      If the police were worried about there being more bombs, that is absolutely within the established exception. As Bazelton said, that’s fine and good.

      The issue here is that Holder has expanded that exception, arguing: “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.”

      I don’t know if the police/FBI are invoking the exception in this case to look for bombs, or to look for intelligence. What I do know is that Holder has opened the door for the latter, unrelated to immediate public safety.

  7. Mean Mister Mustard says:

    This Miranda controversy is all window dressing.

    “It is possible that she is saying that Anzor Tsarnaev was a soldier or security policeman for the pro-Russian Chechnyan government of Akhmet Kadyrov, established in 1999 in the course of the Second Chechnya War against the Islamic Peacekeeping Army, which had invaded Daghestan.”

    Then there’s this which was news to me….

    “Most ex-Soviet Muslims are secular and many don’t believe in God or think religion is important. Their families lived under a Communist regime for some 70 years, with its campaigns of official atheism and anti-religious indoctrination in schools. In the ex-Soviet Muslim-heritage republics, there are huge struggles between those happy in their secularism and those who are attempting to recover a Muslim identity. That struggle has played out in Chechnya as well as in Uzbekistan.”

    http://www.juancole.com/2013/04/fathers-sons-chechnya.html

    There is a lot more to learn from this story. hopefully the young man will be able to tell us.

    • Anonymous says:

      What do you think is significant about those two claims about his family, if true? I’m asking because it’s not at all clear to me why you’d think they have some explanatory value regarding the attacks.

      • Mean Mister Mustard says:

        “Author John Laughland wrote: “the leading group which pleads the Chechen cause is the American Committee for Peace in Chechnya (ACPC). The list of the self-styled ‘distinguished Americans’ who are its members is a roll call of the most prominent neoconservatives who so enthusiastically support the ‘war on terror.’

        “They include Richard Perle, the notorious Pentagon adviser; Elliott Abrams of Iran-Contra fame; Kenneth Adelman, the former US ambassador to the UN who egged on the invasion of Iraq by predicting it would be ‘a cakewalk’; Midge Decter, biographer of Donald Rumsfeld and a director of the rightwing Heritage Foundation; Frank Gaffney of the militarist Centre for Security Policy; Bruce Jackson, former US military intelligence officer and one-time vice-president of Lockheed Martin, now president of the US Committee on Nato; Michael Ledeen of the American Enterprise Institute, a former admirer of Italian fascism and now a leading proponent of regime change in Iran; and R. James Woolsey, the former CIA director who is one of the leading cheerleaders behind George Bush’s plans to re-model the Muslim world along pro-US lines.”

        http://consortiumnews.com/2013/04/19/chechen-terrorists-and-the-neocons/

        The FBI interviewed Tamerlan Tsarnaev, the elder of the brothers suspected in the Boston bombings, in 2011, two U.S. law enforcement officials told ProPublica Friday evening. The FBI agents conducted the inquiry into suspected extremist or terrorist activity at the request of a Russian security agency, the officials said.

        “Yes he was interviewed,” a U.S. law enforcement official said. “Nothing derogatory came of it. We reported it back to the other agency, but never got anything as far as further communications from them. There was never any reason to do anything else.”

        http://www.propublica.org/article/boston-bombing-suspects-echo-home-grown-terrorists-in-madrid-london-att#

        ‘Nuff said?

        • Anonymous says:

          No, nowhere near “nuff”. Neocons generally support the Chechnyen cause, I’ve known that for years and don’t know why you think it sheds light on this case. The import of the previous interview is also unclear.

          If you’re suggesting some sort of conspiracy here, please don’t be coy. Some of us don’t have the kind of mind that sees the sort of connections your mind does easily.

        • joe from Lowell says:

          I’m not really clear, either.

          Are you suggesting that his motive could be opposition the the USA’s (supposed) support for the Russian actions against Chechnya?

        • PSP says:

          I strongly support detention and interrogation of Richard Perle and Michael Ledeen until it is absolutely clear that they had no role in the bombings. Three-four months ought to be enough to make certain. I believe they are both on record that water boarding is a useful interrogation technique and not torture.

          • somethingblue says:

            Also, shouldn’t the right to remain silent be construed, in Lindsay Graham’s case, as an obligation? I think I can discern a penumbra to that effect.

    • jeer9 says:

      While our ever-growing police state can’t yet look into the hearts and minds of its citizens and those who seem suspicious overseas, the fact that the FBI was aware of the elder brother’s actions and ran a background check on him as recently as two years ago makes me think the enormous tax dollars spent on safety and security are not very well spent and that, together with the Terror Tuesday deliberations, are all part of a rather unflattering pattern.

      • Johnny Sack says:

        Or they didn’t have enough to do anything with him. If a background check and an interview don’t give you anything, you can’t (well, you’re not *supposed* to anyway) just lock people up and throw away the key. People are acting as if this is some huge oversight, as though the FBI doesn’t conduct thousands of these interviews. It’s more art than science, and sometimes you don’t get enough for deportation or arrest, or even continued monitoring all things considered.

        • jeer9 says:

          While I understand your point, it is disheartening to see a lack of consistency in recognizing what we don’t know about others’ motivations at the domestic and foreign levels, especially when lives are at stake. The FBI’s (perhaps reasonable) caution only makes the executive privilege (DRONEZ!) more glaring and inhumane.

  8. joe from Lowell says:

    Just so I’m absolutely clear: the public safety exception means that any statements the suspect makes when questioning occurs under that exception can be introduced in court, right?

    The government can already question without Mirandizing you, and the only consequence is that your statements can’t be introduced. The exception here is about being able to introduce the statements, not about whether or not the questioning can occur, right?

  9. [...] era. It sure would be nice if more folks on the left echoed Scott Lemieux, who this morning explained very clearly and succinctly what’s at stake here: [This is] the message of the previous [...]

  10. Johnny Sack says:

    People need to stop pretending that a Miranda defective interrogation will somehow get the entire case tossed out. At worst, a piece of evidence the Government didn’t need gets excluded. And if a rogue district court judge dismisses the case, they’d be bench slapped hard by the 1st circuit and it would go back to trial.

    • Vance Maverick says:

      I don’t think I’ve seen anyone pretending that. On the contrary, the probability that the Feds will get away with unnecessarily violating the spirit of Miranda should make us fear for our rights.

      • Johnny Sack says:

        I’ve seen some people misstate what happens when evidence is excluded, but it’s not a point I’ll argue on.

        What is the spirit of Miranda these days? If argue that the Court itself already violated the spirit of Miranda in Berghuis. Fourth and Fifth Amendment jurisprudence is an absolute clusterfuck.

    • DocAmazing says:

      bench slapped

      Is that how you spell it?

    • Richard says:

      Absolutely correct. A Miranda violation, even a forced confessions violation, only affects the confession or incriminating statement. It has no effect on the prosecution other than the incriminating statement is not admitted.

      Lets assume that the interrogation of this guy today and tomorrow is done without a Miranda warning. At most, it means that the incriminating statement is not admitted but the feds are going to have enough evidence to slam dunk convict this guy without any statements to police. And lets assume he makes an incriminating statement today without having been given his Miranda warning and that a court later finds that the warning should have been given. The cops can give him his Miranda warnings tomorrow and if he repeats the same statement tomorrow (which is likely since this kid surely knew today even without a Miranda warning that he doesn’t have to speak to law enforcement), then the second statement can be used.

  11. BruceJ says:

    Here, how about this reason:

    We either believe in the Rule of Law or we don’t. If we don’t, all we’re left with is the Rule of Man, (which used to be called ‘The Rule of Kings’, wherin the King’s word was divinely ascribed law.)

    This is also known as ‘Might makes Right’.

    FEMA camps and all. This is, after all, the working assumprion the batshit Right woorks on, and by Batshit Right, I include much of the current GOP congressional and senate delegation.

    Both McCain and Graham (both of who should freaking know better) are calling for him to be held as an enemy combatant. McCain is doing so with a justification that wouldn’t take much stretching to cover any crime comitted in the US.

    We do not make people Enemies of the State under our Constitution.

    But this is what you get when your constitution consists solely of two amendments, the Second and the Tenth. Once you’ve redacted all the rest, you have what Ted Cruz and Louie Gohmert believe is our foundational document.

    • efgoldman says:

      Both McCain and Graham (both of who should freaking know better) are calling for him to be held as an enemy combatant.

      Just once, just once, I’d like some talking head on a Sunday show to ask these guys directly: “What are you afraid of Senator? What about the criminal courts and procedures frighten you so much that you would crinkle up the Constitution and throw it away. What, Senator?”
      I know, my unicorns will be delivered on Monday…

  12. [...] Scott Lemieux, for example, objects to it mostly because of the message it sends about how we’re conducting the “War on Terror”: To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda— sends the opposite message.   It’s the message of the previous administration — i.e. that the rule of law and the “war on terror” are incompatible, that slapping the label “terrorist” on a suspect means that professional procedures that respect the rights of the accused can’t work.   This isn’t right  — it’s wrong in terms of the values it represents and it’s wrong in terms of the underlying assumption that less respect for the rights of the accused means more effective crime control.  The appropriate course of action is for Tsarnaev to be treated like any other criminal suspect, consistently with not only the letter but the spirit of Miranda.  Coercive interrogations are wrong because they’re wrong, not just because the state isn’t permitted to introduce evidence gained from them.  This is why the Bill of Rights contains the Fifth Amendment rights Miranda was designed to enforce. [...]

  13. divadab says:

    I was listening to Sean Hannity on the radio as this thing unfolded, and one of his guests was Jay Sekulow (he was on before Ann Coulter). It struck me as strange that Sekulow mentioned two or three times in a fifteen-minute interview that the bombers “would not be read their Miranda rights”. WHat’s the agenda he’s advancing? WHat the heck is the ACLJ, anyway? Why do images of a certain dictator dancing as the Reichstag burns come to mind?

  14. Mean Mister Mustard says:

    Hmm. No mention of Turkey.

    The human rights picture in many countries remained deeply troubling last year, the State Department said Friday, with the Middle East facing “the harsh realities of incomplete and contested transitions,” Russia and Iran cracking down on activists, and many governments harshly suppressing both new and traditional media.

    http://www.nytimes.com/2013/04/20/us/politics/state-dept-sees-little-progress-on-global-human-rights.html?ref=todayspaper&_r=0

  15. Thers says:

    It’s debates like this that make me miss the calm, clear voice of Joe Lieberman in our national discourse.

  16. [...] (not always agreeing with the above) from Orin Kerr, Scott Lemieux, Emily Bazelon, Freddie deBoer, and Glenn Greenwald. Share [...]

  17. Mike D. says:

    Again for clarity, from the Greenwald this time:

    As Marshall noted, the police have always had the power to question a suspect about imminent threats without Mirandizing him; indeed, they are free to question suspects about anything without first reading them their Miranda rights. But pre-Miranda statements were not admissible, could not be used to prosecute the person.

    Greenwald agrees. Can we put this to rest?

  18. [...] may be, in itself, a sure signal for worry–it’s symptomatic of a graver matter. As Scott Lemieux writes: Miranda does not require us to be indifferent about the distinction between coercive and [...]

  19. Julian says:

    To my knowledge, what rea said upthread is 100% correct, and it’s what I was going to say.

    Imagine that Alan is on trial for personally shooting Bob. Carl saw Alan shoot Bob. It is black letter law Carl can be forced to testify to that fact under oath(or else face contempt of court) unless Carl’s testimony would incriminate Carl.

    Furthermore, it is black letter law (to my knowledge) that Carl could be compelled to testify, under oath, to what he saw, EVEN if it incriminates him, IF the government grants him use and derivative use immunity.

    Do you think that this would violate the 5th Amendment? Can you cite a single American case that agrees with you?

    Like I said in the other thread, and again in this thread, I agree that the Constitution prevents the government from just beating admissions out of you, even if those admissions are not used at any trial, but it is emphatically NOT the Fifth Amendment that gives you that protection. And I would like to know where you locate the right to be free from coerced testimony that is NOT incriminating.

  20. brad says:

    The sad fact is that Miranda isn’t obeyed that often anyway.
    I was not mirandized when I was arrested. They claimed, however, that they did, and my lawyer made clear that it would be pointless to challenge that assertion. And I’m a well off white guy who cleans up well for court.

    As for this case, he’s an American citizen who committed crimes on American soil. He has rights, full stop, end of story, if you disagree why do you hate America?

  21. Dan says:

    He is a foreign national on a visa. He is not a citizen of this country and was a guest. Any rights he might have were forfeit on the day he decided to blow up Americans. He is not a burglar; he is not a speeding driver; he is not a human that respects other humans; he is a one man slaughterhouse of people’s hopes, dreams, ambitions, and lives.

    The golden rule: treat others as you would like to be treated. I think we all have a very good impression on how he treats people, don’t we?

    • Malaclypse says:

      He is a foreign national on a visa. He is not a citizen of this country and was a guest.

      He’s a naturalized citizen.

      Any rights he might have were forfeit on the day he decided to blow up Americans.

      That is how privileges work, not rights. And even if he were not a citizen, we don’t fail to treat people on visas as though they had legal rights.

      He is not a burglar; he is not a speeding driver; he is not a human that respects other humans; he is a one man slaughterhouse of people’s hopes, dreams, ambitions, and lives.

      This is probably true. We need a trial to prove it.

    • Phil says:

      He is a foreign national on a visa. He is not a citizen of this country and was a guest.

      Oh-for-three. Take a seat in the dugout, big guy.

      Any rights he might have were forfeit on the day he decided to blow up Americans.

      Might want to go over your Constitution again, chief. Fifth Amendment rights (and others) are specifically granted to “all persons,” whether American citizens or not.

  22. [...] Scott Lemieux added: It is true that, in a narrow sense, the federal government is free under Miranda to interrogate Tsarnaev without informing him of his rights if it believes it has enough independent evidence to convict him.   But this is not the only consideration.   Miranda does not require us to be indifferent about the distinction between coercive and non-coercive interrogations, and indeed its logic suggests that we shouldn’t be.  Earl Warren, to his great credit, did not believe that there was a inherent contradiction between professionalism and the respect for the rights of the accused and crime control.  The local authorities that relied on coercive interrogations and didn’t follow professional procedures weren’t more likely to convict criminals, although they were more likely to convict the innocent.  Miranda reflected this belief, and the intent of the rule was to inhibit coercive interrogations, because coercive interrogations were both wrong in themselves and produced unreliable information. [...]

  23. Anon21 says:

    To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda — sends the opposite message. It’s the message of the previous administration — i.e. that the rule of law and the “war on terror” are incompatible, that slapping the label “terrorist” on a suspect means that professional procedures that respect the rights of the accused can’t work.

    The use of “rule of law” and “rights” here is confusing, since you’ve already acknowledged that his Miranda rights would not be violated by a non-Mirandized interrogation unless the government subsequently used his statements against him in a criminal prosecution.

    More broadly, I agree that our law enforcement officials shouldn’t conduct coercive interrogations. But putting the focus on Miranda is misleading. Many interrogations conducted under the auspices of Miranda are quite coercive, and there’s nothing about failing to abide by the specific prophylactic rule of Miranda that automatically creates an environment of coercion.

  24. Eli Rabett says:

    Carmine “Aaron Swartz” Ortiz, is the US Attorney. Nothing could go wrong.

    • David M. Nieporent says:

      You mean, Ortiz will offer Tsarnaev a deal that will send him to prison for a few months, but he’ll arrogantly decline because he maintains he did nothing wrong, and then later kill himself to escape punishment?

  25. [...] anything without a Miranda, not just safety questions like “are there more bombs?” LGM adds more thoughts, and links (as Greenwald does) to Emily Bazelon’s excellent analysis. In [...]

Leave a Reply

You must be logged in to post a comment.

  • Switch to our mobile site