There has been much debate about whether the hospitalized suspect in the Boston bombings should have been given his Miranda warnings as soon as possible. As we have seen in other terrorism cases, the knee-jerk reaction by the public and government alike is often to take measures that erode away at our protections guaranteed by the Bill of Rights.
Such is the case, once again. The FBI and DOJ say they are using the “public safety exception” as a legal way to interrogate the suspect without advising him of his Miranda rights to remain silent and his right to an attorney. I was joined today by Alan Dershowitz, one of the most renowned attorneys and legal scholars in the nation to discuss the case.
First off, what is the “Miranda warning?” In the1966 case of Miranda v. Arizona, the U.S. Supreme Court laid out six very specific warnings that police must give suspects in a custodial situation before they are interrogated: "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him."
There are a few valid exceptions to the Miranda requirement, with the public safety exception (‘PSE’) being one of them. The 1984 case of New York, v. Quarles, the Supreme Court carved out this exception for situations “where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda." The court ruled that for statements gathered under the PSE to be later admissible in court, the questioning must involve a scenario "in which police officers ask questions reasonably prompted by a concern for the public safety."
Many of our listeners, and quite a few public officials, have said over the last week that the suspect not only should not be Mirandized, but actualy deserves NO typical constitutional protections, and should be tried by a military tribunal as an ‘enemy combatant.’ However, Dzhokar Tsarnaev is an American citizen accused of setting off bombs and murdering a police officer on American soil. Obama’s DOJ has repeatedly said that terror suspects arrested inside the U.S. should be handled within our criminal justice system. And, the White House announced today that there will not be a military tribunal.
Dershowitz told me in no uncertain terms that investigators should read the bombing suspect his rights as soon as possible in order not to jeopardize the case.
“They should give him his Miranda warnings, because there’s no public safety exception that’s applicable here,” Dershowitz said. “The police have told the people of Boston, ‘go about your business, we’ve got the two suspects, there are no bombs around.’ The public safety exception is designed not to gather information to prevent future crimes, but for immediate ticking-bomb situations.”
There appears to be a large amount of evidence implicating the two brothers in the bombing, including videos and photos. So, what’s the worry with not Mirandizing them right away?
“The reason is because they have to prove intention. It’s not enough to prove that he planted the bombs in order to be convicted of federal terrorism, which carries the death penalty,” according to Dershowitz. “They have to be able to prove that he intended to commit an act of terrorism. They may get that information from his statements that are un-Mirandized, and the courts may keep them out. This may deny them the death penalty.”
And, Dershowitz told me that it sets a very bad precedent.
“I think it expands the PSE beyond where it was intended by the courts, and it basically shows contempt for our constitutional rules, and an attempt to circumvent the Constitution. We can prosecute this man within the Constitution and within the Miranda rules, and I think we can do it successfully.”
I also asked Dershowitz why should we should be worried about a suspected terrorist's Miranda rights, when persons summoned before a federal grand jury in ANY case have zero rights.
"Well, it’s a terrible rule…They were never intended to be that by the framers of the Constitution. You have no rights in front of a grand jury,” Dershowitz said. “You don’t have a right to a lawyer in front of a grand jury. It’s awful, it’s really an inquisition.”
You gotta help me here. I don’t understand. Terrorists writing in their online magazine Inspire, claim they will force America into bankruptcy by detonating bombs that costs them hundreds of dollars, but costs us billions of dollars via continual increases in security. Terrorists call it "Death by a Thousand Cuts." (Foreign Policy magazine, 11-23-10, David Gartenstein-Ross.)
One of the terrorist bombs that we caught and defused on a UPS jet allegedly costs $4,200.00 for them to make and deliver. This initiated our first purchase of hundreds of body scanners and additional national security carrying a price tag of billions of dollars. Al Qaeda points to the bankruptcy of the Soviet Union because of their war in Afghanistan as evidence that they can do the same to America.
This is what I don’t understand. Why do we keep adding anymore security? Why don’t we eliminate the security we can’t afford… the security costs that are hurting all American industries? It’s called the “Friction Economy.” (The Friction Economy American business just got the bill for the terrorist attacks) and even TEN YEARS AGO, it cost us a minimum of $151 billion dollars a year! How much do you think it is today?
The odds of being on a plane which is the subject of a terrorist incident have been 1 in 10,408,947 for over ten years. By contrast, the odds of being struck by lightning in a given year are about 1 in 500,000!
So what are the chances of being hit by a bomb at a marathon, a Super Bowl, or a Mardi Gras? Infinitesimal. So, why don’t we just go about our business and expand the economy with the money we would spend on security and not make the terrorists predictions (U.S. bankruptcy) come true?
I still don’t know, but I do have a suspicion...fear. Fear sometimes causes the human animal to do dangerous things, in order to avoid danger.