When the government of the United States announced that Dzhokhar Tsarnaev would not immediately be given the usual Miranda warning, civil libertarians expressed concern for his rights. My first reaction was to call to mind the immortal words of Dirty Harry in this scene: “Well I’m all broken up about that man’s rights.” Given the enormity of the crimes of which Tsarnaev is accused, that is an understandable first reaction. On the other hand, it really should remain only a first reaction, since, after all, he really does have rights. Nevertheless, it is not out of bounds to raise some questions about the rights the civil libertarians have emphasized in this case.
In the first place, the Miranda warning — according to which the police must advise a suspect that he has a right to remain silent and a right to an attorney — is not actually required by the Constitution. It is a rule devised by the Supreme Court — in, it must be added, one of its most liberal and pro-criminal defendant periods — to protect people from violations of their Fifth Amendment right not to give evidence against themselves. That provision obviously means that a suspect cannot be punished for refusing to answer the questions of the police. In the Miranda case the Court went a big step further and held that custodial interrogation — questioning while being held by the police — is so inherently intimidating that it amounts to coercion, unless the police take the active step of reminding the suspect of his right to remain silent. What was at stake here, then, was not Tsarnaev’s right to remain silent, or his other rights under the Constitution, but his right to having law enforcement go out of their way to remind him of those rights and facilitate his assertion of them. Viewed in that light, the delay in the implementation of the Miranda warning looks a little less troubling.
Moreover, we might question whether the Court that devised the Miranda warning really had a case like Tsarnaev’s in view. Certainly custodial interrogation is an intimidating experience for the ordinary person and even the ordinary criminal. But would it necessarily be so intimidating to a terrorist who has perhaps contemplated being captured and steeled his mind to meet the situation, and who might even have been trained by others to be uncooperative in interrogation? In such a case the inequality that the Miranda Court sought to remedy might not exist, or might not be so pronounced. I am not here claiming that Tsarnaev is a highly trained terrorist or that he received such preparation. I have no evidence that this is the case. My only point is that in the case of someone committing a premeditated terrorist act might not fit the Miranda Court’s concern for the problems confronted by run of the mill criminal suspects.
Also, as has been noted, there is a “public safety” exception to the Miranda requirement. That exception is traditionally drawn more narrowly than the government might have liked for the purposes of this case, and the government might have been stretching the exception had they continued to delay Mirandizing Tsarnaev. But this simply raises the question whether the existing public safety exception really is sensible, or whether it is improperly narrow. If it makes sense to make a public safety exception in a case in which the suspect has direct knowledge of a threat to human life that will emerge in the next day, why wouldn’t it be defensible to have a broader exception is the suspect has knowledge of a plot to endanger human life, say, next month? Is a violent death tomorrow more of a threat to the common good than a violent attack a month from now?
Finally, the Miranda warning only applies to a person who is being held as a criminal suspect. It might, however, be possible to hold Tsarnaev as an enemy combatant, in which case he would not be entitled to such a warning. The government decided not to treat him as such, and I have seen at least one commentator suggest that it is obvious that he is not an enemy combatant. I don’t know what information the government has, and I seriously doubt that they have at this point everything that is relevant. At any rate, I think it is obvious that a journalist or political commentator is in no position at all to say that Tsarnaev could not properly be treated as an enemy combatant. If he and his brother cooked this plot up on their own, I don’t think it would be fitting to put him in that category. If he were a member of another nation’s army with whom we were at war he obviously would be an enemy combatant. But what if he is somewhere in between? What if he has affiliated with an international terrorist organization the purpose of which is to attack the United States? In such a situation it might well be defensible to treat him as an enemy combatant. And those of us who are getting our information from the news media do not yet know enough to know whether this was the case here. So while the government might be right to decide at this point not to hold him as an enemy combatant, I think they are jumping the gun who rule this out almost categorically from the outset.