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On the Legal Treatment of Tsarnaev

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Obviously, it’s a good thing that Tsarnaev will not be declared an enemy combatant and will be given a civilian trial. It’s not surprising, given that this has been the consistent practice of the Obama administration, but it’s worth noting all the same.

The fact that he hasn’t yet been read his Miranda rights is more problematic. The public safety exception to the Miranda requirement is real, so whether Tsarnev’s rights have been violated will depend on the details. But a refusal to read him his rights for any extended period would be unacceptable, and this bears close watching. I’m not at all persuaded that labeling someone a terrorist should allow the government to go significantly beyond the typical emergency exception.

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