It appears now that Dzhokhar Tsarnaev was begun to be questioned late on Sunday evening, almost 48 hours after he was apprehended, hiding in a boat in a backyard.
There are some things that should be without dispute:
1. That Tsarnaev is an American Citizen;
2. That the Constitution and all of its protections apply to all American Citizens (and, to be sure, to all residents, but that’s not necessary here), and;
3. That, by virtue of 1 & 2, Tsarnaev has the inalienable right to remain silent, to be appointed counsel and to not be made a witness against himself.
It is irrelevant that the privilege against self-incrimination is a trial right, in that if the right is violated, the statements cannot be used against him at his own trial. It is irrelevant that Miranda is prophylactic and isn’t a right in of itself, but an advisement of already existing rights.
The right exists. It is his right; it is my right; it is your right.
And yet we dither and equivocate and we say, but there is an exception. All laws have an exception. This one is called the “we are scared” exception, also commonly known as the “public safety exception”. It is also the exception to swallow the right.
In New York v. Quarles, a 5-4 majority of the United States Supreme Court said that if the police were faced with the “immediate necessity” of obtaining information that would prevent danger to themselves or others they could invoke a “narrow exception” to the Miranda rule and question a suspect about that “immediate” danger without having to advise him of his rights first¹. They further ruled that those statements would then be admissible in court to prove the defendant’s guilt. See also U.S. v. Abdulmutallab [PDF].
The Obama administration, which has put on a clinic [Bazelon at Slate] of how to forcefully and conclusively [FBI memo] encroach on individual liberties [NYTimes], was quick to state [TPM] that they “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.”
It’s been 48 hours. You know the funny thing? As of 9:00pm on Friday night, there were people lining the streets of Boston, cheering and celebrating as they so much deserved to do.
Had there truly been a immediate necessity and an imminent threat to public safety, would that have been allowed? Should it?
I don’t say the above to participate in the more looney fringes of internet discussion that are sure to crop up arguing that the whole thing was a set up, but rather to point out the obvious: that the “public safety” exception is an excuse used by the administration to rip a hole into the Constitution and drive a truck through it.
Others have written more persuasively than I have about why Tsarnaev should have been read his rights: James Holmes was, Timothy McVeigh was.
What makes Tsarnaev different? His name? The color of his skin? The fact that he used a “bomb” and not a gun?
Is our application of the Constitution dependent on the person who seeks its protection? Scratch that; of course it is. Should it be? Can we sustain our moral superiority as the foremost defender of freedom and liberty in the world if we are so quick to make it a Constitution of convenience?
The cost of Quarles is that we are living in a fear-ridden society; that everything is a “public safety exception”. That the bogeyman at night is now a terrorist with a slightly different colored skin, nevermind the fact that we used to proudly trumpet being the “melting pot of the world”. We are xenophobic and afraid. Hiding in the dark clutching our guns, paralyzed in fear, because the terrorists are out to get us, whoever they might be. We are like a person in the throes of a mental illness whose anxiety and fear have taken over every aspect of their existence.
We are a country that has sacrificed everything we believed in at the altar of a promise of safety:
our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.
A safety that is illusory – and if it comes, at what cost? Consider the following quote:
“I think that the good news is we don’t need ‘enemy combatant’ to get all the information we need out of him. No. 1, the court, the one court that has ruled, has allowed a lot of flexibility in the public safety exception before you Mirandize somebody,” Senator Schumer said. “But second, at any time, what’s called a HIG, a High-Value Interrogation Group, composed of the F.B.I., C.I.A. and anyone else, can question him without a lawyer in a secured situation and find out whatever they need.”
A second U.S. Senator (Schumer) had said, with a straight face apparently, that an American citizen can be interrogated after denying him the Sixth Amendment right to counsel “in a secured situation and find out whatever they need”. If that isn’t an euphemism for torture, I don’t know what is.
Tsarnaev – and you and I – has the right, Miranda notwithstanding, to refuse to answer questions. Do you realistically think that is an option here?¹ Either he won’t be aware of that right (in which case the government has subverted a U.S. citizen’s Constitutional right), or he won’t be allowed to exercise that right if he knows it. I don’t know which is more frightening.
And therein lies the problem. We can quibble about the legal realities of the admissibility of his statement, but such a discussion is a mere distraction allowing the Government to get away with much more. They’re making off with our rights and our protections; while you’re staunchly guarding the second, they’ve stolen your fourth and fifth and sixth. They’ve made it impossible to exercise a right, either because you weren’t paying attention or too scared of terrorism.
You want to know something funny? There’s a perfectly legal way for the Government to have its cake and eat it too: they can “question” Tsarnaev under the “public safety” exception, the Mirandize him, then ask him the same questions again and the second statements are now admissible in Court. There. Dispensed with that pesky “Fifth Amendment”.
You think this doesn’t happen every day in police stations across America? You’re wrong. Ask any cop you know about the “pre-interview“. It’s here. It’s real. It’s in violation of your Fifth Amendment right.
If Quarles was about the immediate need to find a gun in a supermarket and Tsarnaev is about finding “critical information” 48 hours later, is there a scenario that isn’t covered?
The Constitution is a document that deserves more than lip service. It is a document that deserves obedience. It is not a suggestion of rights that may be offered, if enough people agree that the recipient is deserving. It is there to protect the worst among us, because if the worst are protected, then the best are protected – and more importantly, the vast majority of us – the only human – are protected.
The rights exist. They are his rights; they are my rights; they are your rights. Do you want your rights to be subject to a popularity vote? To convenience? To the color of your skin?
If the world is full of “terrorists” and “criminals”, then will you abide a judge ruling that the “public safety” exception wasn’t met and suppressing statements? If an “exception” can be so broad, can it be called an exception at all?
And if the exception so swallows the Right, can you be said to have that Right at all?
¹Putting aside entirely the question of whether, had he been Mirandized and then confessed, such a confession would have been voluntarily made.
N.B. 1: If a single one of you so much as suggests that this post in any way implies that I have no sympathy for the victims of the bombings, I will track you down using thermal imaging and shove you inside a boat and leave you adrift on land.
N.B. 2: It seems that the Federal Public Defender of Massachusetts is on standby, waiting appointment. If it were Connecticut (and State court), the police would be required to inform Tsarnaev that he had legal counsel available to provide pertinent legal representation if he chose to, prior to being presented in court and appointed. It is the practice of many public defender offices in CT to fax letters to or call police departments when they know suspects are in custody and may be questioned. State v. Stoddard.