There’s a lot of discussion about the Department of Justice’s decision not to read the bombing suspect a Miranda warning, due to the DoJ’s interpretation of the public safety exception. The public safety exception allows police to interrogate a suspect without a Miranda warning if there is a great danger to public safety, and still have the subject’s statement and the evidence gathered from it be admissible in court.
[…] 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. This isn’t right — it’s wrong in terms of the values it represents and it’s wrong in terms of the underlying assumption that less respect for the rights of the accused means more effective crime control. The appropriate course of action is for Tsarnaev to be treated like any other criminal suspect, consistently with not only the letter but the spirit of Miranda. Coercive interrogations are wrong because they’re wrong, not just because the state isn’t permitted to introduce evidence gained from them. This is why the Bill of Rights contains the Fifth Amendment rights Miranda was designed to enforce.
These points are very well-taken but I think it pays short-shrift to what I noted above about what Miranda actually means and requires. If the government doesn’t intend to use anything Tsarnaev says at trial, then there’s nothing about Miranda and the cases that followed it that requires them to given him the warning before questioning him regardless of whether they formally apply the “public safety” exception. No sanctions will be suffered by the state at trial, and the defendant would not have any civil claims against the officers who interrogating him, unless the interrogation was in some way physically or mentally coercive in which case a whole other set of laws applies. Given this, I’m not sure that the failure to Mirandize for what is likely to be a relatively short period is an egregious a mistake as Lemieux makes it out to be.
I’m inclined to side with Lemieux and Bazelon–read him his rights immediately–but here’s the key point: what isn’t happening here is what Lindsey Graham and John McCain want to happen, which is to treat the suspect like an enemy combatant. If they delay Mirandizing the suspect, the Obama Administration’s decision will be subject to the rules of evidence as interpreted by the judge at the suspect’s trial, because he’s going to be tried just like every other US citizen accused of a crime. Tsarnaev isn’t Lex Luthor or Voldemort, he’s McVeigh, Kaczinsky or Eric Rudolph. We’ve dealt with his kind before, and we’re more than capable of doing it again.