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Article posted Apr 22 2013, 7:46 AM Category: Commentary Source: Techdirt Print

Why The DOJ's Decision To Not Read Dzhokhar Tsarnaev His Miranda Rights Is A Terrible Idea

by Mike Masnick

On Friday, while he hunt for Boston bombing suspect Dzhokhar Tsarnaev was still going on (and after his bother, the other main suspect, had already been killed), Senator Lindsey Graham took to Twitter to argue that the US government, if it captures him while he's still alive, shouldn't read Dzokhar his Miranda rights. As you hopefully already know, the Miranda rights are the famous "you have the right to remain silent, anything you say can and will be used against you in court, and you have a right to an attorney" etc. The requirement for a statement along those lines (and the name of the "Miranda rights") came from a 1960s case, Miranda v. Arizona, and has since been considered a core part of American due process for those being arrested. And this is a good thing.

When Graham made his statement, many got up in arms, and argued that Graham was unfamiliar with the Constitution. While I more or less agree with the basics of that, much of that anger probably should have been directed at the Obama administration, which officially created an exception to the Miranda rules (unilaterally, without court approval) a few years back (apparently in October of 2010, though news about it only came out in March 2011).

And, indeed, after Dzhokhar was apprehended, the DOJ said that it was not reading him his Miranda Rights because it was invoking a "public safety exception" with the argument being that they needed to get him to talk to make sure the public wasn't in danger. As others have pointed out, this is a horrifically short sighted decision that can only backfire.

  • Suspending basic rights and due process out of fear is exactly the kind of thing that people attacking the US want to see. Showing that we can't live up to our most basic rights and principles in the face of a terrorist attack gives those who hate us that much more incentive to keep going. It's not just a sign of weakness, but an encouragement for those who seek to undermine our society. In fact, it takes a step in that very direction by showing that the government is willing to throw out the rules and principles when it gets a little scared by a teenager.
  • The slippery slope here is steep and extremely slick. There are no rules on when the DOJ can suddenly ignore Miranda. It gets to decide by itself. This is an organization with a long history of abusing its power, now allowed to wipe out one of the key protections for those they're arresting, whenever it sees fit. The whole point of the ruling in Miranda is that it should not be up to law enforcement. A person's rights are their rights.
  • The part that really gets me: if anything, this opens up a really, really stupid line of defense for Dzokhar Tsarnaev if he ever faces a criminal trial. His lawyers will undoubtedly claim that the arrest and interrogation was unconstitutional due to the lack of (or delay in) Miranda rights. Why even open up that possibility of a defense for him?
  • The guy has lived in the US for many years -- chances are he actually knows the fact that he has the right to refuse to speak. So, we're violating our principles, basic Constitutional due process, and opening up a massive opening for a defense, to avoid telling him something he likely already knows.

  • It's been said before and it'll be said again, but turning ourselves into a paranoid police state without basic rights means that those who attack us are winning. We should be better than that, and it's a shame that our leaders have no problem confirming for the rest of the world that we're not. What a shame.

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