Miranda Warnings and the Boston Marathon Bomber: Why Obama is Wrong

The decision by the FBI not to read Dzhokhar A. Tsarnaev, the accused Boston Marathon bomber, his Miranda rights is wrong on at least two counts. The first is from a perspective of the law, the other by way of a broader principle regarding the rights of individuals in a democracy.

The Supreme Court ruled in Miranda v. Arizona that the police must advise individuals of their rights at that time they are taken into custodial arrest.  In effect, at the time they are detained and when police questioning turns from general information gathering of an individual to accusatorial interrogation, that is when the Miranda warnings must be given.  The warnings are a product of the Fifth Amendment right against self-incrimination.

In  New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court created a narrow exception to the Miranda warning requirement.  That case involved a situation where police chased a suspect into a store.  They apprehended and searched him, and then found an empty holster.  They suspected he had ditched a gun.  Before giving him his Miranda warnings they asked him where the gun was, he told him, and then they gave him his rights.  The Supreme Court upheld this as valid.  They ruled that police could question a suspect to address imminent threat to the safety of public or officer.  Once that threat was abated, then the police would need to offer Miranda warnings.  The public safety rule is not blanket exception to obtain evidence or testimonial information that may be used against individuals to convict them.

With Dzhokhar A. Tsarnaev, the police were within the Constitution not to read him his rights when they first apprehended him.  They needed to determine if he had bomb or other weapons that could threaten police or public safety.  Once that threat was addressed t hey should have Mirandized him.  It would have taken a few seconds and no harm would have followed form doing that.

There is little evidence that Mirandizing someone really hurts a police case, but not doing so can be significant.  In general information gathered in violation of the Miranda requirement cannot be used in Court to convict a person.  Thus, potentially information that the police gather on Dzhokhar A. Tsarnaev might not be allowed in court to prosecute him.  A review of post-Quarles cases does not make it clear what the public safety exception will allow in.

But would it not be better not to take a chance.  Why risk prosecution by not giving him his rights?  Depending on what he is charged with and what evidence there is, this decision could be legally damaging to the government’s case.

The second reason why not Mirandizing Tsarnaev is wrong more about the broader concept of democracy and human rights in a free society.  After 9/11 the Bush Administration invoked questionable legal doctrines about the rights of the president and the government to bypass the Constitution and international rights in the apprehending, detaining, and prosecution of suspected terrorists.  They concocted questionable theories about torture and tried to offshore illegal activities to places like Gitmo in Cuba.  (I have written extensively about this issue in my two articles “Defending American Presidential Authority in a Post 9-11 World: Examining the Justice Department Memoranda.”  Democracy and Society Volume 5, Issue 2 (May 2008) and “Democracy on Trial:  Terrorism, Crime, and National Security Policy in a Post 9-11 World,”38 Golden Gate Law Review, 195 (2008).)

For the most part, the Supreme Court rejected the Bush Administration’s questionable legal theories. In a series of cases most notably including  Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court ruled that all individuals–not just American citizens–held within US territories, must receive the protection for their rights that the Constitution demands.  Yet despite these rulings, both Bush and now Obama have continued to press these flawed legal theories.  Most recently, the Obama Administration pressed the case to support Drone warfare, and now this use of the public safety exception with  Tsarnaev.

Presidents do not have extra-constitutional power.  Respect for our constitutional rights is not something we do when it is just convenient.  It is something that is required of a democratic free society.  It is what separates the US from non-democratic countries.  Tsarnaev is a US citizen arrested and accused of crimes in this country. There is no reason to exempt him from the Constitution.  In a free society the government carries the burden to prove guilt and it is required to play by the rules.  The rule should apply here to.

9/11 and Hate American Style: Have we no sense of decency?

If July 4 is the American holiday of freedom and independence, 9/11 is rapidly becoming the calendar date for hate and bigotry in the United States.

As we remember 9/11, numerous events are converging in this country. There are the demands by Tea Party activists, members of the Republican Party, and assorted so- called Christians and nativists to prevent Muslims from building a community near Ground Zero. Claims are it is too close. Is too close four blocks, one mile, one state, or not in the United States?

From the sounds of the lunatic minister in Gainsville, Florida, who wanted to declare 9/11 national burn a Koran day, building anywhere in the Christian, God-loving red, white and blue America seems to close.

Then there are those who opposed immigrants and support the punitive Arizona law. There are those who oppose gay marriage. There are those who rallied with Glen Beck asking that we remain a Christian nation and those–including Beck–who question Obama’s faith and patriotism and implicitly his race, and then there are all of those who think the war on terrorism is the 21st Century version of the Crusades.

Hate seems to be everywhere and it is embarrassing. I thought this country was better than that. I thought the Statue of Liberty represented better. As someone who takes pride in a family that came through Ellis Island, I thought it represented better than that. I thought our Constitution, Bill of Rights, and Declaration of Independence stood for something better than that.

Unfortunately, the ugly side of American politics is out again. The side that burned witches at Salem, enslaved the blacks, beat gays at Stonewall, fried the Rosenbergs, and blacklisted many fine Americans during the 50s; all that is back. 9/11 now seems to be the symbol and date for hatred and bigotry in America.

I feel sorry for Obama, he is doing the right thing denouncing those who wish to persecute Islams. But he seems to be alone. Other major Democrats seem silent, perhaps fearing for their jobs in November. Republicans such as Palin, Bachmann, and others in the leadership are not speaking out, instead ranging from silently to overtly egging on this bigotry.

Moreover, the more Obama denounces the bigots, the more he enrages them, convincing them that he is one of them, whomever it is. America seems to be turning into what we despise. We say we fight for freedom against oppression but now we seem as guilty as those whom we oppose. Where is our moral leadership, our sense of decency?

Charles “Chuck” Colson of Watergate fame, now a Christian leader, got it right in an ad in the NY Times the other day: “Burning the Koran does not elevate the Bible.” How is hate and persecution consistent with any Christianity except for that practiced by the Grand Inquisitor and the Spanish Inquisition? To be Christian, as far as I know means more than that.

Raised Catholic during Vatican II the message I learned was one directly from Jesus and the Sermon on the Mount. It was a Christianity of equality and forgiveness, of social justice, and compassion. Where is that spirit now among those who claim to be Christian? The Jesus I learned about would have said that a Christian nation is one that welcomes all, respects all, and treats us all according to the Golden Rule.

Blaming it all on Islam reminds of another movement. They blamed it all on the Jews. Now I know some will say I am being alarmist or doing an injustice to the Holocaust and what Jews faced under Hitler. Ok, without making that parallel, the recent events remind me of a great Monty Python routine where John Cleese portrays a Hitler-like figure who blames all social problems on the bicycle riders! Sound foolish? Of course it does and so do those who are turning 9/11 into a national day of hate.

The McCarthy era ended when Joseph Welch said to the senator: “Have you no sense of decency?” I ask the same and hope that as a nation we have the decency to turn on the bigots.