Should Tsarnaev Be Read His Rights?

Emily Bazelon worries because he hasn’t been Mirandaized:

[T]he next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

Jason Mazzone counters:

A newsflash: Miranda does not in any way require the police to warn suspects taken into custody that they don’t have to answer questions or that they have a right to have an attorney present. All that Miranda says suspect-number-2is that if the interrogators don’t give the warnings, then (barring an exception), the government won’t be able to introduce into evidence at trial statements the unwarned suspect makes (or the fruits of those statements). Accordingly, there is nothing remotely unusual about the Tsarnaev situation. Millions of criminal suspects are questioned every year by the police (and other law enforcement officials) without ever being advised of their rights under Miranda. Police officers I know tell me they hardly ever Mirandize individuals they arrest because cases in which the arrestee’s statements are relevant to securing a conviction (especially in a world of plea bargaining) are quite unusual.

Sandy Levinson disagrees with Mazzone’s dismissal of Bazelon and considers Tsarnaev’s individual case:

As a practical matter, as Marty Lederman has suggested elsewhere, it is quite unlikely that Dzhokhar Tsarnaev is unaware that he has a right to remain silent, either because of his knowledge of American culture or because his alleged terrorism-masters in Chechnya would surely have had the wit to say (something like) “if you’re captured, remember that those wimp Americans will accord you a right to remain silent.” Also, as Marty has suggested, it is almost certainly the fact that a smart defense lawyer would not necessarily advise taking the fifth, precisely because there is so much evidence against him and the smart thing to do would be to strike a deal for, say, life imprisonment in return for singing like a canary (and verifying what he says by tracking down his leads).

As a practical matter, I don’t object. As a symbolic matter, I fear it reeks of post-9/11 panic. I’m just relieved we do not have a Romney administration or this American citizen would be getting prepped for being tortured, just as Jose Padilla was. Orin Kerr is on the same page as Mazzone:

[T]he government is still free to question Tsarnaev outside Miranda as long as the government accepts the uncertainty of whether those statements would be admissible in a criminal case against him.

Assuming that the evidence against Tsarnaev’s many different crimes over the last week is likely to be overwhelming, agents may not need any statements from him for a criminal case. They may simply want whatever intelligence he can provide for use in broader antiterrorism efforts, and Miranda is no impediment in that case. The agents are free to question Tsarnaev outside Miranda to gather intellligence as long as they don’t cross the line into coercing statements from him.

Freddie DeBoer has a different view:

Timothy McVeigh: killed 168 people. Injured over 800 more. Was motivated by political convictions. He was arrested, Mirandized, charged, appointed with legal counsel, and tried in a civilian court. Ted Kaczynski: killed three people. Injured 23 more. Was motivated by political convictions. He was arrested, Mirandized, charged, appointed with legal counsel, and processed through a civilian court. Eric Rudolph: killed two people. Injured at least 150 more. Was motivated by political convictions. He was arrested, Mirandized, charged, appointed with legal counsel, and processed through a civilian court.

If you recognize that the results of these legal cases were consonant with our system of jurisprudence and with justice, you cannot ask for a separate status for Dzhokhar Tsarnaev without supporting legal discrimination based on ethnicity and religion.

Scott Lemieux adds:

The local authorities that relied on coercive interrogations and didn’t follow professional procedures weren’t more likely to convict criminals, although they were more likely to convict the innocent. Miranda reflected this belief, and the intent of the rule was to inhibit coercive interrogations, because coercive interrogations were both wrong in themselves and produced unreliable information.

To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda — sends the opposite message. It’s the message of the previous administration — i.e. that the rule of law and the “war on terror” are incompatible, that slapping the label “terrorist” on a suspect means that professional procedures that respect the rights of the accused can’t work.

Jeffrey Rosen’s related thoughts:

[N]o one has produced evidence showing that non-mirandized investigations, like enhanced interrogation, are necessary to procure valuable intelligence—the administration originally argued that the ordinary criminal justice system was adequate to try even the Guantanamo detainees. “We should use the rules we currently have, because no one has made a convincingly argument that the rules don’t work,” says [Dennis] Kenney, a policing scholar and former cop. “Collectively, you’ll find that the police are pretty comfortable with the rules as they are and if you talk to police leaders, they’re nervous about these kinds of changes.”

And Brian Beutler makes an important final point:

Miranda rights aren’t conferred on a suspect at the moment an officer of the law reads them to him. They’re fundamental. And if Tsarnaev awakes in the hospital aware that he doesn’t have to say anything, and demands an attorney, the FBI ultimately can’t deny him one.