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“Could Not Be Independently Confirmed”

There’s a dispute brewing between the Tsarnaev brothers’ mother, Zubeidat, and the FBI about whether or not they called Tamerlan Thursday morning and told him he was a suspect.

Their mother went so far on Sunday to claim that the FBI had contacted her elder son after the deadly bombs exploded at the marathon. If true it would be the first indication that the FBI considered him a suspect before Boston descended into violence on Thursday.

At FBI headquarters in Washington, spokesman Michael Kortan stood by the bureau’s public statement of two days ago in which the bureau described a 2011 FBI interview of Tamerlan Tsarnaev. Kortan said the 2011 interview was the only FBI contact with Tamerlan Tsarnaev. The FBI statement from two days ago says that the FBI did not learn of the identity of Tamerlan and his brother until Friday after the gun battle in which Tamerlan was killed.

The mother’s claim could not be independently confirmed, and she has made statements in the past that appeared to show a lack of full understanding of what occurred in Boston.

[snip]

Tsarnaeva said her elder son told her by telephone that the FBI had called to inform him that they considered him a suspect and he should come in for questioning. [my emphasis]

I can imagine a lot of reasons for the dispute: Tsarnaeva is confused, the FBI is lying (though why they’re so keen to admit their vaunted facial recognition couldn’t find Dzhokhar, I don’t know), or Tsarnaeva is working an angle to — as many Chechens are doing — argue that this is somehow kind of a setup.

But I thought it worthwhile to point out what AP did with this report: it presented the dispute, repeated the FBI’s talking point claiming they had only contacted Tamerlan in 2011, and then said Tsarnaeva’s claim could not be independently confirmed.

As if the FBI claim could be.

Which of course it couldn’t. Even if they were willing to share Tamerlan’s file and the communications they had with the Russians, they wouldn’t do so until far later in the discovery process. And the centrality of foreign liaison communications with the Russians to this question would make the documents the most sensitive kind of classified document.

I’m not saying I believe the mother over the FBI; let’s wait to see what other evidence we get (and see whether the FBI tries to explain why it set off a manhunt rather than use the facial recognition tools we taxpayer spent billions to buy). But it’s worth noting that even in spite of this Administration’s blatant abuse of secrecy, the press is still treating their undocumented claims as verified.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

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.

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Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.