Now that second Boston bombing suspect has been apprehended, there are still lots of unanswered questions swirling. One of them is whether or not he has been read his Miranda rights, which are designed to protect a suspect's Fifth and Sixth Amendment rights under the US Constitution. The answer as of this writing that the bombing suspect is not being read his rights. "There is a public safety exemption in cases of national security and potential charges involving acts of terrorism," said US Attorney Carmen Ortiz at a press conference tonight, "And so the government has that opportunity right now, though I believe that the suspect has been taken to a hospital."
So far, Dzokhar Tsarnaev has not been read his rights
Talking Points Memo confirmed with an official at the Department of Justice that so far Dzokhar Tsarnaev has not been read his rights, so that the DOJ could "question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence."
The public safety exception has existed since 1984, when the Supreme Court ruled that in very limited cases, law enforcement could question a suspect about imminent threats before reading Miranda rights. Those rules became established law, and in February 2011, the FBI itself published an extensive review of the public safety exception. In it, the FBI said that "questions designed solely to elicit incriminating statements" fell outside the public safety exception and that Miranda applied to them.
"Such interrogation might include, for example, questions about possible impending or coordinated terrorist attacks."
However, the Obama administration has long pushed for an expanded interpretation of the public safety exception. In March of 2011, a memo from the FBI leaked to the New York Times which "encouraged agents to use a broad interpretation of public safety-related questions." It generally instructs agents to limit their questioning to issues of "immediate concern for the safety of the public or the arresting agents," but does grant that there are "exceptional cases" in which "continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat." In those cases, agents are told to seek higher approval whenever possible.
The determination whether particular unwarned questions are justified on public safety grounds must always be made on a case-by-case basis based on all the facts and circumstances. In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.
Depending on the facts, such interrogation might include, for example, questions about possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks.
At this time, with Tsarnaev in the hospital, it's not clear what questions law enforcement has put to him. We also don't yet have answers about whether the government intends to limit their pre-Miranda questions solely to issue of immediate threats to the public or whether it believes this is one of those "exceptional cases" that merits questioning that goes beyond imminent threats.
There's also the later question of how exactly Tsarnaev will be tried. The going presumption is that it will be in a criminal court, but earlier today Senator Lindsey Graham began agitating for a military trial. In a joint statement with Senator John McCain, Graham expanded on his call for what he calls the "enemy combatant option."
Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks.
We remain under threat from radical Islam and we hope the Obama Administration will seriously consider the enemy combatant option.
However, Tsarnaev is a US citizen and is most likely going to be tried as such — and the public safety exception to Miranda theoretically gives law enforcement some latitude to address terrorism concerns within that system. Hopefully, more details on what exactly the judicial process is going to look like will come out soon, and presumably it will include reading Tsarnaev his Miranda rights at some point.