Sunday, April 21, 2013

Dzhokhar Tsarnaev and the Eyes of the World

I can't believe it. The U.S. Government has announced that it will not immediately read Dzhokhar Tsarnaev his Miranda warning, invoking the so-called 'Public Safety Exception' as its so-called rationale. This Exception, created by the Rehnquist Court in 1984, allows authorities to question detainees for up to 48 hours about threats to the public or to law enforcement before advising the detainee of his or her various rights, notably the right to remain silent and right to an attorney. Should the detainee speak during this Public Safety Exception period, his or her comments can be admitted into court to be used against him.

OK, sure, you say. The police need to find out if there are any other threats to the public that the detainee knows about and that compelling state interest outweighs the need to keep the detainee fully informed of his rights. What's the problem?

Ah, but there's the rub. Because, you see, the detainee already has the right to remain silent. Tsarnaev could know about 6 more bombs set to detonate in the next 24 hours and he has the absolute right to remain silent about them. All the Miranda rule does is require the government to formally apprise Tsarnaev of his right to silence. Same goes for his other rights. Tsarnaev has an absolute right to request an attorney at any time. All the Miranda rule does is require the government to formally apprise Tsarnaev of his right to an attorney. And all the Public Safety Exception does is relax the requirement that the government Mirandize Tsarnaev before seeking testimony that it then uses in a case against him.

So Tsarnaev has these rights already, it's not the government's  fault if Tsarnaev doesn't understand his rights and Public Safety demands that the government not inform him of these rights so that it can try to elicit information from him that it can use against him, provided that information deals with issues affecting the Public Safety.

See a problem there? Well, let's see. Tsarnaev will be facing the death penalty since the case is now in U.S. jurisdiction (as 'terrorism') and the government basically can try to trick him into further implicating himself.

Jesus H. Christ, don't these legal beagles in the Justice Department understand that the entire civilized world (most of which resolutely opposes the death penalty in all cases) is watching us to make sure that we really have left the days of the Bush-Cheney torture regime behind? Anything that gives the appearance that we are playing fast and loose with Tsarnaev's rights in our system and the world will be entitled to claim that the Bush-Cheney torture regime was not an exception but is part of a new norm.

President Obama, I thought you were some hot-shot constitutional lawyer, law professor or both. Do you really intend to give the rest of the world the impression that we are playing fast and loose with the life of a 19-year-old by playing legal tricks on him?

Come on, Obama, do the right thing. Instruct prosecutors to Mirandize Tsarnaev as soon as he is capable of understanding the Miranda warning. If there truly is a public safety concern - and I think there might be - immunize Tsarnaev for any information he gives about future bombs or other conspirators. But whatever you do, don't try to trick him into further implicating himself. The whole world is watching. You are better than this and America is better than this. And the whole world is watching.


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