Dzhokhar Tsarnaev: The Big Issue Is Not Miranda, It’s Presentment

Particularly given Lindsey Graham’s persistent tweeting yesterday that “the last thing we may want to do is read Boston suspect Miranda Rights,” there was a lot of discussion in the moments after Boston Marathon bombing suspect Dzhokhar Tsarnaev was captured last night about whether he would be read his rights.

At first, there were reports he would be. But then DOJ announced he would not be read Miranda immediately; they would invoke the public safety exception to question him.

“The suspect is en route to the hospital for immediate treatment,” the official tells TPM’s Sahil Kapur. “But we 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.”

As of about 40 minutes ago, he had still not been read his rights.

Now, thus far, I’m actually not that worked up about Miranda rights (though I may get there soon). As Orin Kerr explains, the public safety exception is a legally recognized law, and Miranda itself only limits what can be admitted as testimony against Dzhokhar in his trial (I’m betting he’ll plead guilty in any case). The government appears to have so much evidence against him in any case, any confession he makes will likely not be necessary to convict him.

Mind you, as Charlie Savage reported two years ago, the government has been institutionalizing longer delays before they give Miranda warnings, most notably with people they (or foreign proxies) interrogate overseas first, followed by a clean team Mirandized interrogation. And as the reference to “gain[ing] critical intelligence” above suggests, the Obama Administration is stretching the intent of pre-Miranda interrogations to include more substantive interrogation (update: Emily Bazelon also made this point).

But here in the US, the delays on Miranda warnings aren’t that long. The best–quite similar–example is the 2009 UndieBomber, who was interviewed for about 50 minutes under a public safety exception when he was captured. That entire interrogation was deemed admissible and in fact formed a significant part of the opening arguments in his trial (which didn’t get much further than opening arguments before he plead guilty). So the UndieBomber’s case is one reason the Administration is confident they could question Dzhokhar without Mirandizing him at first (though the length of time has gotten far longer than used with the UndieBomber).

There’s a precedent from the UndieBomber I find more troubling though. The judge in that case also allowed the use of UndieBomber’s statements from the hospital after he had been given a fair amount of sedation. While there was a dispute about how much he got and what kind of effect that might have had, conversations he had with a nurse were also used in the opening arguments of the trial. The two issues together — a suspect interviewed without a lawyer after he’s been given serious drugs, both of which will be apply to Dzhokhar, as well — is troubling on legal, humanitarian, and practical grounds. The High-Value Interrogation Group had already been brought in last night, which suggests he may well be asked questions while in precarious medical state.

But the big issue, in my opinion, is presentment, whether he is brought before a judge within 48 hours. In addition to stretching Miranda, the government has also been holding and interrogating suspects for periods — up to two weeks for American citizens and far longer for non-citizens — before they see a judge. Not only does this postpone the time when they will be given a lawyer whether they ask or not (because judges are going to assign one), but it gives the government an uninterrupted period of time to use soft coercion to get testimony and other kinds of cooperation.

In my opinion, two of the most troubling cases like this, both involving naturalized citizens accused of terrorism, are Faisal Shahzad and Manssor Arbabsiar.

Shahzad, the Times Square bomber, was held and questioned, reportedly with the help of the HIG, for two weeks before he first appeared before a judge. Each day during that period, he signed a waiver of his right to appear before a judge. Ultimately, he plead guilty, so no one every questioned whether his confessions were coerced or not.

But there are two details that I think raise questions about whether he freely waived his rights. First, within a day or so of his arrest, Pakistani authorities had detained a friend of his and his father-in-law in Pakistan. The day after that, authorities put Shahzad’s father, and possibly his wife and children, under “protective” house arrest. That is, even before he normally would have been permitted to see a judge, his loved ones — possibly even his kids — were in Pakistani custody. Particularly given the way our government used threats to family members with detainees being tortured, this seems like a potential way to coerce a presentment “waiver.”

Then there’s the reason the government gave for wanting uninterrupted access to Shahzad:

Federal law enforcement agents are vigorously and expeditiously pursuing leads relating to this and other information provided by the defendant, a process which has required the participation of hundreds of agents in different cities working around the clock since the defendant’s arrest. Uninterrupted access to the defendant has been, and continues to be, critical to this process, which requires, among other things, an ability to promptly verify with him the accuracy of information developed in the investigation. [my emphasis]

The government said it wanted to avoid presentment so it could have uninterrupted, around the clock, acces to him to verify information with him. Recall the technique used at Gitmo, “Frequent Flier,” where detainees would be wakened and moved, as a way to continue to use sleep deprivation without looking like they were doing so. The language of round-the-clock access seems to permit the same kind of sleep deprivation by default.

Like Shahzad, Manssor Arbabsiar (the Scary Iran Plotter) had a period of delay before seeing a lawyer, 12 days. During that period, he provided a confession that would be the cornerstone of most of the charges against him, and would also be about the only admissible evidence directly implicating the Quds Force in Iran. Without that confession, in other words, the government had almost no case, and certainly not one they could make an international incident over.

In that case, too, the government seemed to implicate his brother (who had transferred money to him) during the initial period, which raises questions about whether that helped to get him to cooperate. The government kept Arbabsiar hidden away at a military base, rather than a jail. The government never told Arbabsiar that charges against him had already been filed, so he never knew what those charges were (or what they didn’t include, which was a bunch of stuff he confessed to).

But it’s in the way the government got Arbabsiar to sign his first waiver I find most troubling. Arbasiar was detained in Mexico sometime on September 28, 2011 (the government has never publicly revealed what time). He was held there for some time, then flown to JFK, arriving at 8:40 PM on September 29, where he was arrested. He was questioned for three hours in what sounds like a bogus public safety exception form (there was absolutely no reason to believe there was a public safety risk, not least because Arbabsiar’s main co-conspirator was a DEA informant). And only then was he first asked to waive Miranda. But the government’s discussion of this timing (which was a response to an almost entirely redacted defense motion to throw out this confession) ties that waiver with Arbabsiar smoking a cigarette. It appears — though the facts on this are almost entirely secret — that the government detained a chain smoker at least three and more likely at least 24 hours (and possibly up to 48 hours, given his detention in Mexico), and then used the offer of a cigarette to get him to waive his most basic rights. There also appears to have been food involved (though Arbasbiar had the opportunity, which he didn’t use, to eat on the plane to the US), but the use of a cigarette to get someone to waive Miranda seems especially troubling (I realize rewards like cigarettes are central to non-violent interrogation, but apparently tying to basic rights is far more troubling).

Arbabsiar’s lawyer had a slew more complaints about his pre-presentment conditions (some also seem to do with food), but we don’t get to see those.

Which is part of the point. What the government did by delaying presentment in these two cases was to afford itself a 2 week period of oversight free interrogation. And there are at least hints –hints that, because both men ultimately plead out, we’ll never learn more about — that the interrogations used some of the same techniques we’re supposed to have left behind.

In only Arbabsiar’s case did the government need the confession elicited using these methods. Like Dzhokhar, Shahzad was caught in the act, with tens or hundreds of witnesses. Nevertheless, the government chose to infringe on the fundamental right to a lawyer, likely guessing it could get the accused to plead guilty and hide all this detail from the public.

Now the government no doubt would claim it needed to do this for intelligence purposes (indeed, the case of the UndieBomber, where they were never able to coerce his cooperation, even though his public defenders appear to have advised him to do so, and therefore had apparently unadmissible evidence against Anwar al-Awlaki may be why they did this), whether that purpose amounted to real intelligence or propaganda they could use internationally. But ultimately, this practice is corroding our legal system (and this approach will surely be adapted for other uses, such as hackers).

There are a lot of reasons why delaying reading Dzhokar his Miranda rights are wrong, ethically. But I’m not as worried about that as the possibility they’ll stash Dzhokar away for a couple of weeks without a lawyer or any oversight. And in any case, the Administration seems intent on developing both means of curtailing rights.

Update: Josh Gerstein, who was the first to report on the presentment issue with Shahzad, considers that and Miranda and other issues in this worthwhile piece.

50 replies
  1. What Constitution says:

    Here’s hoping somebody in the government has the foresight and the integrity to conduct the proceedings surrounding this guy in a manner that is both legally and morally defensible.

  2. pdaly says:

    Well, since he naturalized as a US citizen in 2012 and since he attended US public school, I assume he already knows he can invoke his rights, even without the Miranda warning.

    So does the public safety exception allow for delaying presentment if a suspect invokes the protections of the 5th amendment and asks to speak to a lawyer?

    And in this specific case, I guess he’d have to overcome the effects of any sedatives/pain killers to form the thought and speak it.

  3. P J Evans says:

    I think that since he’s in the hospital, and in serious condition AFAIK, they’d have a legitimate reason to delay arraignment. (I’m more concerned with his safety, given the number of idjits out there who would prefer to see him dead.)

  4. bmaz says:

    @pdaly: No, the presumption of Rule 5 I/A presentment within 48 hours still holds, absent exceptional circumstances. That said, the medical disabilities are likely such exceptional circumstances.

    @par4: I don’t think it laughable at all. For a variety of reasons, I expect this to be a fairly clean prosecution and disposition.

  5. delacaravanio says:

    It looks like the US Department of Justice has successfully fused special relativity and the law, namely that the observations of the passing of time that ordinary human beings make about space and time differ somewhat from the observations of the government, who, as per the conditions of Einstein’s theory, operate in a different frame of reference from the rest of us.

    This warping of space and time that has twisted the Miranda public safety exemption can similarly be found in the DoJ’s white paper on the lawfulness of the use of drones which redefined ‘imminent’ as to no longer require “clear evidence that a specific attack…will take place in the immediate future.”

    Time dilation has lept from the science books to the legal world. Orwell would be most impressed.

  6. emptywheel says:

    @pdaly: No, not at all. Another reason I’m more worried about using coercion to get someone to waive presentment than just Miranda. Miranda is on all the cop shows. Presentment is not, at least not in as dramatic and easy to remember a way.

  7. der says:

    – “Now the government no doubt would claim it needed to do this for intelligence purposes….whether that purpose amounted to real intelligence or propaganda they could use internationally.”

    Exactly. My WAG is this was a horrible crime by an angry hate filled (read “misunderstood”) amateur and his hero worshiping little brother. What does Katherine Russell have to say about Tamerlan Tsarnaev? The different reports of blood loss – large pool behind apartment building, lots of blood in the SUV, blood on the boat – are an indication to me that Dzhokar was weak and,if he was able to stow away long enough (24 hours?), likely close to passing out followed by death. (Suicide by bleeding to death?)

    What did the government know and when did they know it? If the FBI suspected this was an amateur plot (shitty bomb making, video and photographic evidence) was that opinion passed on to the WH and did Obama have his own GWB – “you’ve covered your ass” – moment? Controlling the narrative for its own Machiavellian means is not surprising considering who and why.

    Paul Campos: “So how should the authorities treat political crimes of this sort? While of course every case is unique, it would be good to keep a few basic principles in mind.

    First, giving politically motivated criminals more publicity than necessary is giving them exactly what they want. It’s important to remember that the Tsarnaev brothers were a couple of nobodies, whose only real power came from their ability to use their very limited capacity to engage in acts of public violence to create a level of public terror out of all proportion to any threat they could pose to the public as a whole. (Again, I emphasize that none of this is to deny the horrible suffering they managed to wreak on their victims).”

    – “Graham contends that a 1942 Supreme Court decision upholding a military trial for Nazi saboteurs…”

    Led by clowns, ruled by fools. Drink every time you read or hear the excuse “Revealing information at this time will harm ‘National Security'” (Do you want the terrorists to win!?!!???).

  8. What Constitution says:

    @par4: Thanks to bmaz for recognizing my point — this looks like a circumstance in which the US doesn’t have any reason to act like dictatorial assholes to resolve this matter in a way that conveys a commitment to principles formerly known as justice — so why do it that way? Before this is through, I guarantee you there will be plenty of airing of “concerns” over whether the US is creating more international terrorists than we’re defeating, precisely because of the arrogance displayed by our insistence that no principle of law or justice is applicable to us as we “defend” ourselves around the globe. Here’s a chance to vindicate our system of justice without abandoning it. I’d prefer we do it that way, maybe seize an opportunity not to overreact, and instead to conduct ourselves in a way the last decade has given the world reason to believe we’re not capable of acting. Could be a step in the direction of rejoining the international community instead of pretending to be above it. Just a thought.

  9. Ben Franklin says:

    As a country we watched as martial law shut down a city. But they didn’t kick in the doors of the residents, they knocked. They were so polite. Quite frankly, I find the discussions about Miranda rights to be window dressing, and a distraction. I’m glad the young man survived, giving us a chance to get at motive, sourcing.

    I marvel as the Media has grasped the importance of surveillance cameras; ‘they’re good for us’ and the cameras have algorithms which alert the police if you are attacked in a parking lot.

    S’all good.

  10. P J Evans says:

    @Ben Franklin:
    It wasn’t martial law. That’s decided by the governor and the President. There are procedures in place for it. It’s an actual legal thing, not just a descriptive phrase.

  11. earlofuntingdon says:

    How pitiful that a former JAG lawyer and senator, who would assert his own civil rights to the letter whenever personally challenged about his behavior, should advocate that another citizen be delayed in receiving the benefits of his. A major purpose related to these rights is to ensure that the government act within the law – and not act emotionally, politically or on a whim – especially when it claims a citizen has not.

  12. earlofhuntingdon says:

    @P J Evans: That the actions did not constitute martial law was the point; that they constructed nearly identical circumstances was also the point. The playbook was open and fully utilized, military helicopters included. States far removed from the apparent action, such as Ohio, put their LEO’s on full alert.

    The crime was horrendous, but we are also witness to the increasing militarization of domestic law enforcement. I hope the full cost of the lock-down of more than a million people, their businesses and civic life is included and disclosed in the total costs of this tragedy and its aftermath.

  13. Snoopdido says:

    It sure sounds like the way the US government today uses the Public Safety Exception and the delay in presentment are both used as methods to basically overturn Miranda.

    In reading the pieces from Glenn Greenwald and Emily Bazelon, the history behind the Supreme Court’s ruling inventing the Public Safety Exception placed a narrow crack in Miranda, and the Obama DOJ has taken explosives to it widening it beyond belief.

    It is one thing to prevent a person from obtaining legal representation and euphemistically claiming that the government’s higher purpose and rationale is that there is a need to gather intelligence and/or ensure the public’s safety. It is another thing altogether to then allow the prosecution to use that self-incriminating information gained as evidence in a prosecution.

    As far as I can tell the Public Safety Exception and the delay in presentment as used today are the antithesis of Miranda.

  14. P J Evans says:

    I read that the kid isn’t able to be questioned yet. Since, obviously, they’re not discussing his injuries, I don’t know more than that.

  15. P J Evans says:

    Not sure why the more distant states would do that, unless they were really afraid it was a wide-spread thing. OTOH, they did go on alert in NY and DC, which IMO would have been far more likely targets for organized terrorists.

    This kind of thing does happen on much smaller scales every day. It’s usually for someone like an armed robber, though.

    It also happens for other reasons – I remember a few times at work when we were told not to go out the front doors because of demonstrators out in the street (the joys of working downtown in a major city), and at least once the protesters tried to come into our building. (The building has unarmed security. And video cameras, discreetly placed, which I didn’t know about until after I fell while leaving one afternoon.)

  16. Ben Franklin says:

    from prior thread…

    tjallen on April 20, 2013 at 2:52 pm said:

    @P J Evans: Some people’s notion of liberty does not include being ordered into their homes and “locked down,” no matter what the public safety issue is. We are adults, not children, and each person voluntarily makes decisions about their own safety and risk.

    There are lots of other issues here, too. The false voluntariness, that some citizen might not be treated with full civil rights if they fail to heed a voluntary order, that police and public safety officials might have extended powers over people who fail to perform voluntary requests. No matter how sensible and safety-related the request, there will be people who will refuse to obey, and others who don’t get the message.

    The police always have had the power to barricade areas, and on a large scale this can be used to deny access, close businesses, prevent events from occurring. I guess this isn’t a new power, but it is being used on a larger than normal scale here.

    PJEvans, I am glad the police caught them; I applaud the great work; but that doesn’t excuse me or you from examining the methods used and questioning where we go from here on expanding or limiting this emerging military capability in our big city police forces.

  17. JohnT says:

    The government appears to have so much evidence against him in any case, any confession he makes will likely not be necessary to convict him.

    (Maybe I’m as dumb as a post) So why not Mirandize him? Why not cya? Are they that comfortable in thinking / knowing that they can push the envelope as far as they want?

  18. emptywheel says:

    @JohnT: I don’t think I laid out here at all well, but to my mind, the reason they’re not Mirandizing is not bc Miranda is such a great tool, but bc they want the oversight free custody that comes from delaying presentment, a part of which is making sure a lawyer is not present.

    So Miranda is not all that effective, especially for people who’ve watched cop shows. But it just might screw a plan to ensure the suspect doesn’t have a lawyer for the entire 2 week period that they want to use soft coercive methods.

    Does that make more sense?

  19. Snoopdido says:

    @Ben Franklin: “I am glad the police caught them; I applaud the great work”

    No offense intended, but I had the exact opposite impression of the supposedly “great” police work. I know that was the unanimous perception provided by the media, but I kept finding it being contradicted by the actual facts the media itself portrayed.

    For example:

    a. The initial location of both brothers was as a result of their own actions in the carjacking of the Mercedes SUV, and the resulting 911 call placed by the car owner.

    b. When law enforcement caught up with the carjacked Mercedes SUV and after engaging in a firefight with the brothers, law enforcement somehow allowed Dzhokhar Tsarnaev to escape in the SUV, and then a supposed wounded and bleeding Dzhokhar Tsarnaev managed to further escape on foot.

    c. The massive law enforcement day-long search of a locked down Watertown didn’t find Dzhokhar Tsarnaev. He was located by the homeowner in whose boat he was hiding.

    Basically, I kept seeing hundreds and hundreds of law enforcement personnel in vehicles and on foot rushing around to and fro for several days with no results, and in the end, only by the actions of the brothers themselves and a couple of civilians were law enforcement able to finally meet up with the brothers.

    It all provided great visuals for the media to display, but in actual reality, it didn’t get the job done.

  20. der says:

    Knowing he’s bleeding and hiding in a boat the cowboys shoot the shit out of it and then the governor says: “I, and I think all of the law enforcement professionals, are hoping for a host of reasons that the suspect survives, because we have a million questions, and those questions need to be answered,” Patrick said. “There are parts of the investigation, in terms of information and evidence, that still needs to be run to ground.”

    Patrick said the investigation would continue and prosecutors would assemble a case against Tsarnaev, an ethnic Chechen born in the former Soviet territory now known as Kyrgyzstan who moved with his family to Cambridge’s Inman Square neighborhood nearly a decade ago.

    – The “…ethnic Chechen born in the former Soviet territory now known as Kyrgyzstan…”, the governor forgot to say was also a naturalized U.S. citizen.

    Miranda, schmiranda….controlling the narrative and staying on script – Terrorist sleeper cell.

  21. JohnT says:

    @emptywheel: ie it’s an investigation tool?

    They think they’re going to question him and he’s gonna tell them something substantial that they don’t already know? /mostly rhetorical

    From what I’m gathering today (haven’t followed closely the past week) the Feds have had the two of them under surveillance for a few years, anyway. And it’s at least starting to at least smell like one of the many FBI provoked terris plots

  22. Big-boy pants says:

    Sure, there’s this parochial American public-safety nonsense dreamed up by superannuated party hacks put out to pasture as judges. However, that is superseded by world-standard protections binding as supreme law of the land under Constitution Article VI. Domestic law at all levels must be brought into compliance with the CCPR.

    Under the more tightly drafted CCPR criteria, and the body of General Comments that govern their interpretation, custodial questioning constitutes failure to inform the charged person of his right to defend himself in breach of CCPR Article 14(3)(d), and coercion of confession in breach of Article 14(3)(g).

    In any case with national-security ramifications, federal courts lose any vestige of independence, so defense counsel would be clownishly inept if they did not preserve the option of independent – that is, international – review.

    Where international law is concerned, Rule 72 of the Federal Rules has to be interpreted with reference to International Court of Justice Statute Article 38(1)(d). So if a judge tries to blow off the CCPR, the defense can request that two named experts be called to testify, one on the facts, one on the law; then rest. Denying that request denies your right to a defense, and is reversible error on appeal.

    US lawyers are trained to accept a judiciary that’s been hopelessly perverted. Somebody better tell Dzhokhar, if your lawyer doesn’t know human rights, he’s just another good cop paid to send you up the river.

  23. Snoopdido says:

    @Snoopdido: As a further explanation of what I’m getting at here is we really need to take a realistic appraisal of the psychology of what took place.

    In my view, what we all saw was what I’ll describe with a pun as Mass Panic.

    The visuals broadcast of totally deserted streets of Greater Boston, a metropolitan area of over 4.6 million people.

    F-16 combat air patrols over the city after Monday’s Marathon bombings.

    Hundreds, if not thousands of law enforcement personnel vehicles with lights flashing and sirens screaming for days.

    I don’t fault the relative good intentions of those in power. A forceful display of doing something. They don’t know what else to do.

    That the government and law enforcement response itself tended to ratchet up the civilian fear factor not only in Boston, but country-wide, that is our national post-9/11 response to “terrorism” stimuli.

    And that civilian fear factor increase then reinforced the government and law enforcement response. A self-perpetuating cycle of increased civilian fear and stronger, bigger government and law enforcement response.

    More flashing lights, more screaming sirens, more firepower, and nobody on the streets of a major US city.

  24. P J Evans says:

    @Ben Franklin:
    At least it isn’t like a lot of other sites, where there are people advocating execution, with or with torture or a fair trial beforehand.
    And then there are some senators who seem to have forgotten whatever they learned about legal procedures…

    To me, ‘police state’ and ‘martial law’ mean that they order you to go inside; if you come out, you get arrested or shot, depending on what you do and how they feel. Being asked to stay home and inside, as if it were a major weather event or something like a chemical spill (or a riot), is considerably less stressful and distressing.

  25. Snoopdido says:

    @Ben Franklin: My mistake.

    If PJ is still around, a further explanation of what I’m getting at here is that we really need to take a realistic appraisal of the psychology of what took place.

    In my view, what we all saw was what I’ll describe with a pun as Mass Panic.

    The visuals broadcast of totally deserted streets of Greater Boston, a metropolitan area of over 4.6 million people.

    Combat air patrols over the city after Monday’s Marathon bombings.

    Hundreds, if not thousands of law enforcement personnel vehicles with lights flashing and sirens screaming for days.

    I don’t fault the relative good intentions of those in power. A forceful display of doing something. They don’t know what else to do.

    That the government and law enforcement response itself tended to ratchet up the civilian fear factor not only in Boston, but country-wide, that is our national post-9/11 response to “terrorism” stimuli.

    And that civilian fear factor increase then reinforced the government and law enforcement response. A self-perpetuating cycle of increased civilian fear and stronger, bigger government and law enforcement response.

    More flashing lights, more screaming sirens, more firepower, and nobody on the streets of a major US city.

  26. P J Evans says:

    They were apparently behaving normally between Monday afternoon and Thursday, when the FBI’s good photos were released. I suspect they panicked when the photos came out; the FBI got a couple of really good photos from people who were there, but who didn’t know what they had until the first fuzzy pictures came out. (A spectator and a runner, actually, got the best ones.)

  27. P J Evans says:

    Funny: people living in Boston don’t seem to have been frightened by the lockdown. I suspect that most of the fear was being provoked by the network coverage, which was from meh to very bad. (Ratings are so much easier to get that way. Even if all they’re doing is talking through their expensive hats.)

    I was watching stuff via a Boston TV station, which was doing live coverage from as close as they could get. Mostly what they had was police standing around and lots of flashing lights. The reporters were very calm, very professional, and if they were scared at all, it wasn’t coming through.

  28. posaune says:

    @P J Evans: The images of the house-to-house search with high powered weapons was one of the most disturbing things. The media is only helping to de-sensitize the public to such extreme measures.

  29. Ben Franklin says:

    @P J Evans:

    It’s true they saw it as a feature rather than a bug. They were scared and wanted someone to acquire the secure ground. I respect your opinion, but I’ve found I can never exceed reality with a greater measure of imagination and curiosity.

  30. P J Evans says:

    As I understand it, they were searching yards, not actual houses. I have to say, that if a uniformed guy with a rifle or a shotgun showed up on my doorstep in those circumstances, I’d be nervous, but I’d like to think I wouldn’t be afraid of him, and I’d let them search the yard.

    Also: some more linkies with information of various kinds.
    Rough timeline

    More about the photos released Thursday

    Why they apparently panicked

    The dead brother’s injuries were extensive

  31. Bay State Librul says:

    I was proud of the Boston Police Commish and their response.
    Let’s not criticize now, there will be plenty of time to review “lessons learned”
    The Red Sox game was the most emotional game I’ve ever seen.
    I think if you lived in the state, you might have a different take.

  32. Bruce E. Woych says:

    Just a thought, but had they managed to catch both Brothers alive they would have had one confirmed citizen with the 19 year old, and as I understand it…the older Brother only had a green card status. The distinction should be relevant to future situations, and clarified under the circumstances.

  33. FrankProbst says:

    Okay, I think that my reaction to this is almost 180 degrees different from everyone else’s. Law enforcement has this guy in their custody in what they’re implying is already an open-and-shut case. If they want to question him without Mirandizing him, or while he’s under the influence of heavy sedation, why not just man up and say, “We know this won’t be admissible against this guy (though potentially it could be admissible against other people, depending on what he says), but we’re doing it anyway to protect the public safety.”? Hell, you could even bring his lawyer in and say, “We have not Mirandized your client, so nothing he says right now can be used against him. If he wants to say anything that could potentially make him look good later on, like whether or not there are any other bombs out there, then now is the time.”

    The idea that this kid is going to tell the police everything if he’s not read his Miranda rights, but that he’s going to clam up completely if he IS read his rights, is simply laughable to me. I would also assume that his family is going to go out of their way to make sure his lawyers get to him ASAP. The evidence against him already should be overwhelming. A confession should be a moot point. A deal in which he identifies other potential players (if there are any–his brother may have been the one who had the connections, assuming there were any), on the other hand, helps everyone.

  34. P J Evans says:

    Apparently he’s still not being questioned, because of his condition, but ACLU and the public defender’s office are also worried about him being question before being read his rights. Since he’s been in custody more than 24 hours, there doesn’t seem to be any reason for the public safety exception to still stand.

  35. emptywheel says:

    @FrankProbst: That’s effectively what they did say, but because the public doesn’t understand what that means (and sees Miranda on TV a lot) it isn’t understood that way. It’s also what I meant when I said I’m not much bugged by public safety being invoked generally.

  36. P J Evans says:

    The guy has some kind of neck injury, according to a story in the LA Times. It has some more information on Thursday night, too.

  37. Jeff Kaye says:

    If your problem (and rightly so) is with the presentment issue, then I hope in the future you will consider the case of Ahmed Abu Ali, who was questioned by the FBI from the beginning of his incarceration in Saudi Arabia (by proxy with the Saudi interrogators), and then repeatedly questioned or observed by the FBI for months more, held without charges by the Saudis for 18 months, and then, when a US judge got interested in the case, transferred to him to the US and indicted him with a series of outlandish charges, including plotting the assassination of GWB.

    Ali’s case, too, rested on a “confession”, in this case wrung out of him via torture. That torture was surely used was denied by the judge, relying on false assumptions about the psychological evidence in play (see my recent discussion of that).

    I would note that the HIG, which is supposed to provide expertise in interrogation, and was also involved in the Arbabsiar case, is also charged via Exec Order with doing research on interrogation. In the Arbabsiar case, this research was reportedly underway (we don’t know the nature of that research, but we know by affadavit it was research) when he was being interrogated. Besides being an ethical quagmire to mix research and live interrogation, the issue of exactly what is being done to these prisoners before presentment is disturbing, and I’m very glad you are bringing the issue forward.

  38. bmaz says:

    @FrankProbst: This is a LOT closer to what the situation really is. Miranda is only an exclusionary rule, and only as to communicative statements. If you don’t care if those statements are admissible or not (and with all the other evidence the govt has, they may well not care), then there is absolutely nothing unconstitutional, nor arguably improper, about questioning him as you suggest.

    But this is also part and parcel of what Marcy keeps screaming, and rightfully so, about presentment to the court being the real key.

    I deeply care about Miranda, and have been doing so for a living for over 25 years, but the discussion as to Tsarnaev is completely wacked out in relation to what Miranda really is, and what is really important to protect rights in this case.

  39. Mike D. says:


    Re what the FBI said being what Frank said – wouldn’t that be true if they *weren’t* invoking the PSE and rather just simply saying, We’re interrogating for intel purposes pre-Miranda and thus accepting possible/likely inadmissibility of what he says? But by invoking the PSE, they’re saying that they rather expect and in any case intend to try to get whatever he says that might be useful in prosecution admitted?

    Now I also don’t have a huge problem with that as PSE is law, and the gov’t can make whatever guesstimate it wants about how far it’ll get them in terms of preserving admissibility at trial – it only in act goes as far as the judge rules. But it’s still not the same thing as just not invoking the PSE, where the gov’t would be essentially saying that they’re taking the risk (though I’m sure in fact they could argue the PSE applied all along anyway…). Still, the intent to use whatever is said in prosecution, which is a flat implication of invoking the (Obama-expanded conception of the) PSE, does directly depart from FrankProbst’s suggestion that they essentially communicate or reason along the lines of ‘”“We know this won’t be admissible against this guy (though potentially it could be admissible against other people, depending on what he says), but we’re doing it anyway to protect the public safety.”’

    And clearly, delays in complying with requests for attorneys (I assume – these examples of multi-week delays involve situations where requests were made y/n?) is much more troubling than concerns about the Miranda/Quarles evidentiary rules and how the gov’t strategizes around them. I actually was not aware that in practice the event that actually causes a (public) defense attorney’s phone to ring was presentment before a judge. That needs to be far tighter for us to claim to be upholding black-letter standards. Yikes.

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