Like everyone else, I was relieved to hear that
Dzhokhar Tsarnaev was caught. Kudos to the law enforcement officials who
worked this case so hard, and who brought about a successful outcome of
the manhunt that consumed Boston for most of yesterday. But there are
still many questions to answer, and many challenges ahead.
For one thing, I would like to think that despite the anger and
outrage evoked by the Boston Marathon bombings, Tsarnaev will still
receive due process as the case proceeds against him. At the outset,
there is a due process controversy that needs to be dealt with; whether
Tsarnaev will receive Miranda warnings.
Everyone who has ever watched a cop show knows what the Miranda
warnings are. The defendant has the right to remain silent; if s/he
gives up the right to remain silent, anything s/he says can be used
against him/her in a court of law; s/he have the right to an attorney;
if s/he do not have any attorney, one will be provided for him/her by
the court. However, there is also a public safety exception to Miranda. It would appear that in light of the exception, Tsarnaev is not going to be read his Miranda rights.
I can buy the fact that there may be a legitimate public safety
exception at issue in this case, but as my FBI link makes clear, the
exception is a limited one:
The Quarles Court made clear that only those questions necessary for
the police “to secure their own safety or the safety of the public” were
permitted under the public safety exception.
Voluntariness is the linchpin of the admissibility of any statement
obtained as a result of government conduct. Thus, statements obtained by
the government under the public safety exception cannot be coerced or
obtained through tactics that violate fundamental notions of due
process. Here, it is worth mentioning that prior to the Miranda
decision, the only test used to determine the admissibility of
statements in federal court was whether the statement was voluntarily
made within the requirements of the due process clause. This test
requires that a court review the “totality of the circumstances” to
determine whether the subject’s will was overborne by police conduct. If
a court finds that the questioning of a subject, even in the presence
of a situation involving public safety, violated due process standards,
the statement will be suppressed.
(Footnotes omitted.) The government mustn’t overstep the bounds of
the public safety exception. It needs to ensure that it doesn’t destroy
its case against Tsarnaev, and it also needs to ensure that it doesn’t erode civil liberties for the rest of the population.
A separate question exists as to whether Tsarnaev can or should be treated as an enemy combatant. On this issue, I am with Benjamin Wittes:
… Could the Justice Department legally question and detain the suspect outside the criminal justice system?
The short answer is no, says Benjamin Wittes, a national security expert for the Brookings Institution and co-founder of Lawfare Blog, a national security blog.
Federal courts have said the president has the authority to detain
persons “who were part of, or substantially supported, Taliban or
al-Qaida forces or associated forces that are engaged in hostilities
against the United States,” a power claimed by the Obama administration and codified by Congress.
So unless there’s evidence that Mr. Tsarnaev is linked to any
terrorist group at war with America, “military detention is simply not
lawfully available,” said Mr. Wittes. And there’s also the fact he’s a
U.S. citizen pursued on American soil. That’s not necessarily a legal
barrier, but a barrier under Obama administration policy, said Mr.
There is a third issue that needs to be addressed as well—one that
has nothing whatsoever to do with Dzhokhar Tsarnaev as a person, and everything
to do with how we respond to terrorist threats. This involves the
closure of Boston for most of yesterday as the search for Tsarnaev went
I understand the reasons for the closure; government and law
enforcement officials wanted to keep the public safe while they searched
for Tsarnaev. At the same time, I don’t see what was gained by the
move. Fugitives are tracked all the time within cities without the
cities being closed down, and this includes the tracking of serial
killers and rapists. Those fugitives could do the very same things to
render harm to the public that Tsarnaev might have done yesterday if
there were no public closure request in place. If we don’t close cities
when we are searching for extremely dangerous serial killers and/or
rapists, it’s hard to understand why we would do so in order to search
for a lone terrorist. Oh, I suppose that it might have been possible
that even after his brother was killed, Tsarnaev might have had others
helping him, but that was not the impression that we got from law
enforcement officials yesterday. They seemed to indicate quite clearly
that in the aftermath of his brother’s death, they believed that
Tsarnaev was entirely on his own. And yet, the entire city of Boston was
shut down and turned into a ghost town in order to find him—at a cost
of upwards of $333 million. We regularly tell ourselves and each other
that the best response to a terrorist attack is the resumption of normal
life as quickly as possible in order to make it clear to the terrorists
that they haven’t won. How is that philosophy to be adhered to with any
credibility whatsoever if we turn off all activity within an entire
metropolitan area simply because of one person—even a person who was
responsible for the Boston Marathon bombings? Just imagine what al Qaeda
abroad and terrorist cells in the United States must be thinking; they
must salivate at the prospect of causing extreme amounts of disruption
if a number of cell members act in concert to perpetrate terrorist
attacks within the United States.
Finally, while I am pleased by the sense of unity and togetherness
that the nation seems to have adopted, I am aware that all too soon,
divisions will appear anew. We’ll disagree on issues and many of those
disagreements will be passionate, loud, and very, very boisterous. But
whatever our future disputes, let us all be united in the conclusion
that there is a very real difference between Chechens on the one hand,
and Czechs on the other.