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Miranda Rights Optional: Executive Branch Says So
The aftermath of the Boston Marathon attacks shows that what was once a given–providing a suspect accused of a crime with Miranda rights–has turned into a long-shot due to the country’s “war on terror” mentality. The suspect in custody, 19-year-old American citizen Dzokhar Tsarnaev, has not been read his Miranda rights, despite the fact that he has been questioned by law enforcement interrogators.
The Obama administration and more extreme neoconservative politicians may disagree on tactics–how long to deny the U.S. citizen his Miranda rights and where to try him–but they agree that Miranda rights are now optional in the “war on terror.” The treatment of Tsarnaev is the latest example of the erosion of civil liberties in this country–especially concerning Muslim-Americans.
Initial reports that Tsarnaev, who may have tried to kill himself [3] before being captured in a boat in Boston, was read his Miranda rights–the right to remain silent and to have a lawyer–turned out to be wrong. Tsarnaev is not able to physically speak due to his injuries, but Federal Bureau of Investigation agents began to question him yesterday over his alleged involvement in the Boston Marathon attacks. Law enforcement sources told ABC News [4] that Tsarnaev is “responding sporadically” in writing to questions about the attack and whether there are other attacks planned or other unexploded bombs. As of now, he has not been informed of his Miranda rights.
There is a “public safety” exception to the reading of Miranda rights established by a 1984 Supreme Court case. But that exception is limited to a brief period. The Obama administration has announced that it plans to “extensively” question [5] Tsarnaev without informing him of his rights.
There is no law giving the administration the authority to do so. The administration took it upon themselves in 2011 to unilaterally declare that terrorism cases are so special that Miranda rights don’t have to be read right away to suspects. No courts have taken up a case related to this terrorism exception.
Right-wing Republicans largely agree with the Obama administration’s decision to not give him his Miranda rights. But Senators John McCain and Lindsey Graham want to go even further: declare Tsarnaev as an “enemy combatant” to question him without a lawyer by a high-level team of interrogators for a prolonged period of time. Graham told the New York Times [6] that “30 days of confinement and interrogation as an enemy combatant would be an appropriate amount of time to allow the government to look for evidence that would justify his continued detention under the law of war.”
“You have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable,” said Graham. “I want intelligence officials trained in the intelligence process to have a chance to talk to him, without a lawyer,” he added, saying that the presence of a lawyer would disrupt the interrogation process.
Despite Graham’s pleadings, though, it appears that Tsarnaev will be charged in a federal civilian court. No links have been established between Tsarnaev and Al-Qaeda, the Taliban or their affiliates, the only militant groups the U.S. is technically at war with. Still, it says a lot when a Democratic administration and neoconservative Republicans agree that Miranda rights are not a given. In the “war on terror” era, rights established by the Supreme Court can be taken and given at the executive’s whim. MOREHERE
