Debate stirred over refusal to Mirandize bomb suspect

Police guard the entrance to Beth Israel Deaconess Medical Center on Saturday. Dzhokhar Tsarnaev, one of the suspected Boston Marathon terrorists, is hospitalized in serious condition at the facility.
Police guard the entrance to Beth Israel Deaconess Medical Center on Saturday. Dzhokhar Tsarnaev, one of the suspected Boston Marathon terrorists, is hospitalized in serious condition at the facility.

WASHINGTON -The announcement by President Barack Obama’s administration that it planned to question the Boston Marathon bombing suspect for a period without first reading him the Miranda warning of his right to remain silent and have a lawyer present has revived a constitutionally charged debate over the handling of terrorism cases in the criminal justice system.

This photo released Friday, April 19, 2013 by the Federal Bureau of Investigation shows a suspect that officials identified as Dzhokhar Tsarnaev, being sought by police in the Boston Marathon bombings Monday.
This photo released Friday, April 19, 2013 by the Federal Bureau of Investigation shows a suspect that officials identified as Dzhokhar Tsarnaev, being sought by police in the Boston Marathon bombings Monday.

The suspect, 19-year-old Dzhokhar Tsarnaev, a naturalized U.S. citizen, remained hospitalized Saturday for treatment of injuries suffered when he was captured by the police Friday night, and it was not clear whether he had been questioned yet. But the administration’s effort to stretch a gap in the Miranda rule for questioning about immediate threats to public safety in this and other terrorism cases has alarmed advocates of individual rights.

Anthony Romero, the executive director of the American Civil Liberties Union, said it would be acceptable for the FBI to ask Tsarnaev about “imminent” threats, such as whether other bombs were hidden around Boston, but he said that once the FBI gets into broader questioning, it must not “cut corners.”

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“The public safety exception to Miranda should be a narrow and limited one, and it would be wholly inappropriate and unconstitutional to use it to create the case against the suspect,” Romero said. “The public safety exception would be meaningless if interrogations are given an open-ended time horizon.”

At the other end of the spectrum, some conservatives have called for treating terrorism-related cases - even those arising on U.S. soil or involving citizens - as a military matter, holding a suspect indefinitely as an “enemy combatant” without a criminal defendants’ rights. Two Republican senators, John McCain of Arizona and Lindsey Graham of South Carolina, called for holding Tsarnaev under the laws of war, interrogating him without any Miranda warning or defense lawyer.

“Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks,” they said. “We remain under threat from radical Islam and we hope the Obama administration will seriously consider the enemy combatant option.”

The Miranda warning comes from a 1966 case in which the Supreme Court held that, to protect against involuntary self-incrimination, if prosecutors want to use statements at a trial that a defendant made in custody, the police must first have advised him of his rights. The court later created an exception, allowing prosecutors to use statements made before any warning in response to questions about immediate threats to public safety, such as where a gun is hidden.

The question of applying those rules in terrorism cases arose after a Nigerian named Umar Farouk Abdulmuttalab tried to blow up a Detroit-bound airliner on Dec. 25, 2009. After landing in Michigan, he was given painkillers for burns and confessed to a nurse. He also spoke freely to FBI agents for 50 minutes before going into surgery.

After he awoke, the FBI read Abdulmuttalab the Miranda warning, and he stopped cooperating for several weeks.

Republicans portrayed the Obama administration’s handling of the case in the criminal justice system as endangering national security, setting the template for a recurring debate.

In late January 2010, Abdulmuttalab’s family and lawyer persuaded him to start talking again, and he provided a wealth of further information about al-Qaida’s branch in Yemen. Later, during pretrial hearings, his lawyers asked a federal judge, Nancy Edmunds, to suppress the early statements.

Edmunds ruled, however, that the statement to the nurse had been voluntary and lucid despite the painkillers, and that the 50-minute questioning was a “fully justified” use of the public safety exception. She declined to suppress the statements, and Abdulmuttalab pleaded guilty and was sentenced to life in prison.

By then, the Justice Department had sent the FBI a policy memo urging agents, when questioning “operational terrorists,” to use a broad interpretation of the public safety exception. The memo asserted that giving the “magnitude and complexity” of terrorism cases, a lengthier delay is permissible, unlike ordinary criminal cases.

“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,” it said.

Edmunds’ ruling was seen by the administration as confirmation that its new policy was constitutional - and that it was neither necessary nor appropriate to put domestic cases in military hands.

In other news, federal public defenders have agreed to represent Tsarnaev.

Miriam Conrad, the federal defender for Massachusetts, said her office expects to represent Tsarnaev after he is charged.

Conrad said she believes Tsarnaev should have a lawyer appointed as soon as possible because there are “serious issues regarding possible interrogation.” Information for this article was contributed by Denise Lavoie of The Associated Press.

Front Section, Pages 12 on 04/21/2013

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