The controversy over when Dzhokhar Tsarnaev would be read his Miranda rights illustrates how respect for both basic civil liberties and simple common sense are among the leading victims of this nation’s hysterical preoccupation with terrorism.
After Tsarnaev was captured on Friday night following a day-long manhunt, U.S. Attorney Carmen Ortiz announced that, for at least 48 hours, Tsarnaev—who had been seriously wounded during the chase—would be interrogated without being informed of his right to remain silent, or his right to be represented by an attorney.
The basis for this decision is the so-called “public safety” exception to the Miranda rule, which an increasingly conservative Supreme Court created in 1984, in a case called New York v. Quarles.
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The public-safety exception began its legal life as a very narrow exception to the constitutional rule that a suspect must be read his rights before statements he makes can be used against him in court. In Quarles, police captured a rape suspect, noticed he was wearing an empty holster, and asked him where his gun was. He told them, and the court ruled his statement could be used against him, even though he had not been read his rights.
The Supreme Court’s rationale for making an exception to Miranda in such circumstances is that the police’s actions were not aimed primarily to elicit evidence that could be used against the defendant at trial, but to protect the public from imminent danger, while a dangerous person was still in the process of being taken into custody.
So, for example, if the police had asked Tsarnaev if there were any explosives in the boat in which he was hiding when he was captured, his reply could have been used as evidence at his trial, even though he had not yet been read his rights.
But as all lawyers know, originally narrow exceptions have a way of becoming broader over time. And, in the context of the so-called war on terror, the public-safety exception is in the process of being transformed from a narrow loophole into a door wide enough to drive a truck through.
For example, two years ago the Obama administration adopted the position that the exception could be extended to “exceptional cases” in which the authorities had concluded “that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” (My emphasis.)
This is not in fact a public-safety exception at all, but rather an attempt to eliminate the legal requirement that suspects be informed of their rights, if the suspects are deemed by the government to be terrorists, before a shred of evidence has been presented in court.
Naturally, in the wake of the Boston bombing, the administration’s position has drawn much praise from the usual right-wing bed-wetters, although they are disappointed that Obama has decided not to declare Tsarnaev an “enemy combatant,” which would ensure that this teenaged Threat To Our Freedoms could be neutralized without giving him a real trial first, or even a trial at all.
(New York state senator Greg Bell is even more disappointed, since he wants Tsarnaev to be tortured, purportedly to get information out of him, but more probably for reasons that have to do with certain aspects of Bell’s fantasy life which might benefit from professional therapeutic intervention.)
This entire business is a sad reflection of the extent to which our political culture remains eager to trample on the Bill of Rights, and more generally to embrace authoritarian strains of thinking. While the Boston bombing and its aftermath was a genuine tragedy, the four homicides committed by the perpetrators represented about one percent of the murders committed in this country last week. And of course, terrorist attacks, unlike ordinary murders, remain extraordinarily rare.
Unfortunately, to the authoritarians among us, this adds up to an argument for treating ordinary criminals like terrorists, rather than treating terrorists like ordinary criminals. It is one of the more bizarre paradoxes of our time that arguments for eliminating restraints on the police powers of our increasingly all-seeing surveillance state are based on claims that doing so is necessary to protect, of all things, freedom.
