Monday, April 29, 2013

'Public Safety Exception' Stretched in Bombing Case

      The live capture of the Boston Marathon bombing suspect Dzhokhar Tsarnaev occasioned celebration not only in the streets of Watertown that night [April 19] but all across the United States. Smart work and good cooperation by all the law enforcement agencies involved had kept the Boston area safe and put the homegrown citizen-terrorist on the path toward what seemed certain to be severe justice.
      Almost immediately, however, the celebration was marred by some tough-sounding Republican politicians and supposed national security experts. They called for giving Tsarnaev not grade-A U.S. justice but the degraded brand crafted by the Bush administration and left partly in place under President Obama.
      Sen. Lindsey Graham, the South Carolina Republican, led the calls for treating Tsarnaev not as a U.S. citizen but as an “enemy combatant” without the full complement of rights recognized in the criminal justice system. Graham, a former military lawyer, acknowledged that, as a citizen, Tsarnaev had to be tried in a civilian, not a military, court. But he argued that Tsarnaev should be held as an enemy combatant for perhaps 30 days in order to interrogate him in detail without the complications of Miranda and other constitutional rights.
      The White House promptly rejected the suggestion. “He will not be treated as an enemy combatant,” press secretary Jay Carney said at the April 22 press briefing. “We will prosecute this terrorist through our civilian system of justice.”
      Behind the scenes, however, the FBI had already pushed the envelope on Tsarnaev’s rights by questioning the wounded teenager for 16 hours in a hospital room without a lawyer and without any Miranda warnings. It took a federal magistrate judge to hold a presentment within 48 hours, as required by the Federal Rules of Criminal Procedure, and advise Tsarnaev of his rights.
      The FBI agents questioned Tsarnaev under an expansive interpretation of the so-called “public safety exception” to the Miranda rule created by the Supreme Court in 1984. The 5-4 decision in New York v. Quarles allowed law enforcement officers to dispense with Miranda under very limited circumstances and only for a brief time. In an unannounced policy shift in 2010, however, the Obama Justice Department reimagined the decision into authority for somewhat open-ended interrogation to gather “valuable and timely intelligence not related to any immediate threat.”
      The contrast between the facts in Quarles and those in Tsarnaev’s case show how far the Supreme Court’s ruling has been stretched. The case against Benjamin Quarles began when a woman told patrol officers she had been raped by a man with a gun. Officers stopped Quarles in a grocery store — he matched the woman’s description of her assailant — and asked him, without any Miranda warnings, where the gun was. Quarles pointed to a corner and said, “The gun is over there.” Officers retrieved the weapon; at trial, the prosecution sought to admit both Quarles’s statement and the weapon itself as evidence.
      Lower courts said the statement and the gun were both out, but the Supreme Court said both could be admitted. “We conclude,” then-Associate Justice William H. Rehnquist wrote for the majority, “that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination.” Rehnquist stressed, however, the specifics of the case: the officer asked Quarles only one question and advised him of his rights as soon as he had located the weapon, the “threat” to public safety that justified the exception.
      The Justice Department memo took that ball and ran with it. “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,” the unsigned, four-paragraph statement reads. In “exceptional” cases, questioning could extend to “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.”
      As Emily Bazelon noted in her critical commentary in Slate, the FBI had found no need to dispense with Miranda after Timothy McVeigh was apprehended for the Oklahoma City bombing nor after Eric Rudolph was arrested for the Atlanta Olympics bombing. In the post-9/11 world, however, the feds are giving much less deference to civil liberties.
      The 16-hour interrogation of a hospitalized and presumably sedated teenager stretches the exception up to the limit if not beyond. U.S. Magistrate Judge Marianne Bowler, on the bench since 1990, must have concluded the limit had been reached when she decided to schedule a bedside court appearance on April 22 to inform Tsarnaev of the charges against him and of his rights in the proceedings.
      Bowler and the FBI have both declined to comment, but House Intelligence Committee Chairman Mike Rogers, a Michigan Republican and former FBI agent, said investigators were “not happy” with the judge’s decision. Perhaps not, and perhaps the agents needed time to gather safety-protecting intelligence. But incommunicado, lawyerless interrogation of suspects is a practice that was once thought to have been put behind us. Time will tell whether Tsarnaev’s case proves to be an exceptional exception or a precedent for further expanding it.