Boston Marathon bombing suspect Dzokhar Tsarnaev has been captured and will face trial. But according to Department of Justice officials, he has not been read his Miranda rights — to remain silent and to secure legal counsel — because, as U.S. Attorney Carmen Ortiz explained, there’s a “public-safety exemption in cases of national security and potential charges involving acts of terrorism.”
That means certain statements Tsarnaev makes to interrogators prior to being advised of his Miranda rights will nonetheless be admissible in court.
People began speculating that the FBI might avail itself of this exception from the moment Tsarnaev was found alive and taken into custody. But almost as quickly, we heard law enforcement officials give Boston an effective ‘all clear’ and learned that Tsarnaev was headed to the hospital in serious condition.
In other words, officials conceded the public safety was not in imminent jeopardy, and in any case Tsarnaev wouldn’t be answering questions until after he received some extensive medical treatment. So why is a public safety exemption applicable — why wasn’t Tsarnaev read his Miranda rights, assuming he was coherent, from the get go?
The answer comes in a controversial October 2010 FBI memorandum regarding protocols for interrogating terrorists in the United States.
“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,” the memo reads.
The memo even contemplates a suspect just like Tsarnaev: “[A]n operational terrorist is an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.”
As Slate author and attorney Emily Bazelon notes, the FBI — and if possible, the Justice Department — determine when the exemption is applicable without oversight. When they applied it to underwear bomber Umar Abdulmutallab, they interrogated him for 50 minutes before advising him of his Miranda rights. He stopped talking and demanded an attorney.
But that doesn’t mean the FBI is operating in lawless territory between the moment of capture and the Miranda reading. “[O]nly those questions necessary for the police ‘to secure their own safety or the safety of the public'” are permitted under the public safety exception, according to the FBI. Likewise “Voluntariness is the linchpin of the admissibility of any statement obtained as a result of government conduct,” and “statements obtained by the government under the public safety exception cannot be coerced or obtained through tactics that violate fundamental notions of due process.”
If a court believes these protections have been breached, it can declare the resulting evidence inadmissible.
By the same token, Miranda rights aren’t conferred on a suspect at the moment an officer of the law reads them to him. They’re fundamental. And if Tsarnaev awakes in the hospital aware that he doesn’t have to say anything, and demands an attorney, the FBI ultimately can’t deny him one.
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