By W. Aaron Daniel This post is slightly off-topic for this blog, but should (hopefully) be interesting nonetheless. Today the New York Times had an article highlighting the debate springing up around law enforcement’s interactions with the surviving Tsarnaev brother suspected of bombing the Boston Marathon.
At issue is whether Dzhokhar Tsarnaev should be read his Miranda rights before being questioned by authorities, or whether the “public safety exception” applies. But the scope of this exception is quite narrow, extending only to questions aimed at ending an ongoing or imminent threat to the public safety, and not to questions aimed at building a criminal case against the suspect.
Orin Kerr has a very concise and informative post on the public safety exception and Miranda rights over at the Volokh Conspiracy blog.
Professor Kerr makes the point that being read your Miranda rights is not a right in and of itself unless the government seeks to introduce a suspect’s statements later at trial. And so even without the public safety exception, the FBI and intelligence agencies should be able to question Tsarnaev quite extensively about other plots and participants without ever “reading him his rights,” provided they don’t intend to use those statements later at trial.
Further complicating the issue of how to treat Dzhokhar Tsarnaev is the fact that he is a naturalized American citizen (he received his citizenship on 9/11/12), and he was not captured in the battlefield (even though Boston quite resembled one this past week). Thus, it will be somewhat of a stretch to label him an “enemy combatant,” in order to try him in a military tribunal, despite calls from Senators John McCain and Lindsay Graham to do just that.
But the war on terror is defined by its nebulous character; it is often impossible to tell where its battlefield ends, and where domestic law enforcement begins. And so as our elected officials determine how to proceed with investigating Dzhokhar Tsarnaev, it appears we are once again at that intersection.
Update: Here is a more extensive article from the NYTimes on all of the legal issues surrounding the Boston Marathon bombing suspect, including quotes from Alan Dershowitz:
“This is an American citizen being tried for a crime that occurred domestically, and there is simply no way to treat him like an enemy combatant —