Some say U.S. took ‘public safety exception’ too far


During 16 hours of questioning in his hospital room, Dzhokar Tsarnaev gave the FBI details about his role in the Boston Marathon bombings, U.S. officials have said. But the 19-year-old suspect clammed up immediately after a magistrate judge entered the room Monday and read him his so-called Miranda rights against self-incrimination.

Civil libertarians are decrying the decision by investigators to question Tsarnaev, who was arrested last Friday, without explaining his constitutional rights to remain silent and to have an attorney present during questioning. Others, notably Sen. Lindsey Graham, R-S.C., feel that Tsarnaev, while an American citizen, should be tried in military court as an enemy combatant, making Miranda warnings unnecessary.

Investigators who questioned Tsarnaev employed a “public safety exception” to the landmark Miranda ruling, an exception that has been invoked more frequently in recent years in the interrogations of terrorism suspects.

“It’s a well-accepted exception to the Miranda requirement,” said Ohio’s top prosecutor, Attorney General Mike DeWine. “Just like Miranda, it’s an exception that came from the courts.”

DeWine said it ultimately will be determined in court whether Tsarnaev’s questioning was improper.

Some say the questioning of Tsarnaev seems to go far beyond the intent of the U.S. Supreme Court when it carved out the public safety exception, and its use may compromise the integrity of terrorism investigations and trample constitutional safeguards.

“Is it really a Constitution if you bend it for certain people?” said Thaddeus Hoffmeister, a professor of criminal law at the University of Dayton. “Because of the war on terror, this exception has been dramatically stretched. People are saying this exception may swallow the rule.”

In the famous 1966 Miranda case, the Supreme Court ruled that incriminating statements by criminal suspects in police custody can’t be used against them in court unless police advised them of their rights prior to questioning and the suspects voluntarily waived them.

In a 5-4 ruling in 1984, the court made an exception, saying Miranda doesn’t apply if a suspect is questioned when police have reason to believe their safety or the public’s safety is at risk. The exception stemmed from a case in which police encountered a suspect with an empty shoulder holster and asked him, “Where’s the gun?” The suspect told police where to find the weapon, and authorities used that evidence against him in court, even though he had not been “Mirandized.”

In October 2010, an unsigned FBI memo obtained by The New York Times instructed agents to use the exception to delay Miranda warnings when questioning “operational terrorists” arrested in the U.S., even in cases when agents “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.”

A lower court held that the exception was properly applied in the case of a Nigerian who tried to blow up an airliner bound for Detroit on Christmas Day 2009. FBI agents questioned Umar Farouk Abdulmutallab for 50 minutes, but he stopped talking for weeks after he was given the Miranda warning.

Hoffmeister said 16 hours of questioning in Tsarnaev’s case seems like an excessive use of the exception. “Where does it end, then? If 16 hours is OK, how long can you interrogate them?”

It’s acceptable, he said, to use the public safety exception to ask questions like whether additional bombs were planted, but “if you start asking questions like, ‘Who sent you here?’ ‘Are you part of a cell?’, that starts sounding like you’re debriefing the person.”

Some congressional Republicans have criticized the Obama administration’s handling of the investigation and say Tsarnaev should be considered an enemy combatant and tried in military court. But Hoffmeister said such a strategy raises constitutionality questions in the case of an American citizen charged with a domestic crime.

Nick Worner of the American Civil Liberties Union of Ohio said, “It’s exactly times like these when the principles of the Constitution and the Bill of Rights need to be upheld. It comes down to, do you believe the system is strong enough? I don’t think we need two systems: one for the regular crimes and one for the horrifying crimes.

“We don’t think it’s wise to jeopardize the investigation by not Mirandizing the suspect. Informing suspects of their constitutional rights protects everybody. This isn’t just technicality. This is an integral part of our constitutional rights. There’s certainly a concern that we as a nation are becoming more comfortable with suspending constitutional rights in times of fear.”

Vincent Warren, executive director of the Center for Constitutional Rights in New York City, agreed. In a statement Sunday, he said, “this is yet another erosion of the Constitution to lay directly at the president’s feet.”

“The Miranda warnings were put in place because police officers were beating and torturing ‘confessions’ out of people who hadn’t even been formally accused of a crime,” he said. “We cannot afford to repeat our mistakes.”

DeWine, a Republican, said he is not aware of any trend in the use of the exception that gives him concern.

“The real question always is, is (questioning) a matter of public safety or is it a matter of trying to further their investigation of this subject?” he said. “This is fact-driven, and we don’t have all the facts. You can certainly bet this will be very heavily litigated.”



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