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Being read your Miranda rights also serves as an explicit acknowledgement by the state that you have those rights. Most of the time, this isn't really important, but in this case it would have served a very important purpose.

The Bush administration systematically created a legal netherworld for people they captured on suspicion of terrorism -- people usually referred to as "enemy combatants". They weren't arrested per se, so they weren't entitled to a trial, lawyers, or even the basic rights we associate with a criminal trial such as protection against self-incrimination (i.e. the right to remain silent). On the other hand, the administration argued they weren't prisoners of war either, so the Geneva Convention didn't apply to them.

By defining enemy combatants in this negative way -- in terms of what they are not -- the Bush administration pushed enemy combatant status into a grey area where no pre-existing legal rules seemed to apply. That's how they argued that torture was legal: they said that laws prohibiting torture only applied to prisoners of war or people charged with crimes, and that because enemy combatants weren't either of those things, they could legally be tortured.

If they had read this guy his Miranda rights, the Obama administration would have made it clear that they would treat his future as a police matter and that they were rejecting the enemy combatant framework in this case. They failed to do that, and I think it's a wasted opportunity.

(By the way, when justifying drone strikes and the courtroom procedures at Guantanamo Bay, the Obama administration has continued the enemy combatant framework that Bush's lawyers established.)

That's some really twisted mental gymnastics there. Torture is bad, because it's torture. It doesn't matter if you're a criminal or a human-monkey. How can they get away with it for so long? At least they didn't say torture is legal "because he's not a white guy", but their logic here is not that far off from that.

They are also getting away with it because the torture isn't of the "strap electrodes to his genitals" variety, which most people would immediately reject. Stuff like "loud music," "putting a holy book in a toilet," or "make him think he's drowning," don't evoke the same sort of immediate reaction. If the administration were openly performing at "Inquisition" levels of torture, there would be massive public outcry.

I fail to see the difference between "waterboarding" and "strap electrodes to his genitals" torture.

That is because you understand what waterboarding is. The general public, at least at the time, seemed to lack a proper appreciation for what it really meant.

Waterboarding is torture: http://www.youtube.com/watch?v=qUkj9pjx3H0

I think parent, grandparent, and possibly great-grandparent share that view. The point was that back when we were having these discussions this was a lot less obvious to a lot of people. Which, to a certain extent, the video you linked demonstrates - Mancow hardly would have volunteered to undergo it if he didn't underestimate its awfulness (and he said it changed his views on the subject).

On the other hand they openly talked about extreme sleep deprivation (a few hours a week for months on end) and "walling", which is where you throw someone into a wall over and over.

You have a lot more respect for the public than I do.

Actually the Spanish Inquisition used similar methods, including waterboarding [1]. Certainly some of the US prisoners have been tortured to death [2].

[1] http://en.wikipedia.org/wiki/Spanish_Inquisition#Torture

[2] http://en.wikipedia.org/wiki/Dilawar_(torture_victim)

Interesting, so apparently the Spanish inquisition too started using waterboarding to avoid having to permanently harm their victims.

Don't blame Bush, the Obama administration Justice department created the Miranda exception for "operational terrorists". This has nothing to do with enemy combatants; rather, there is the possibility that an active terror suspect on US soil has information about an active threat to public safety, and the police have a right (and duty) to question him about possible threats.

They have the duty to do that, only he has the right not to answer, despite not having been told so. You have to defend even terrorists' rights if you want yours to stand.

I think Jefferson's comment is relevant here: the price of freedom is eternal vigilance It seems that different groups are constantly picking away at your rights (in all sorts of areas). fight (as much as practical) _all_ the small steps, otherwise they might eventually amount to something that directly affects you.

>>You have to defend even terrorists' rights if you want yours to stand.

Completely agree with this. Unfortunately most people are too stupid to realize that in order to protect your constitutionals rights you must also protect the rights of people you do not like, i.e. hate spouting religious extremists, of any religion. Even the rights of killers like the Boston bombers must be protected if we want ours to be protected.

I'm with you as far as suspects. Suspects should have their rights protected. Convicted felons, however, we already deny a number of constitutional rights de-facto. E.g., right to bear arms and freedom of travel.

Please tell me when he was convicted?

I do not know if you were simply clarifying the parent post or actually referring to the Boston bomber, but the fact of the matter is, you become a "convicted felon" when you've found guilty in the court of law.

Clarifying parent. I know this individual has not been convicted yet, and ergo is not a convinced felon. Just responding to this:

you must also protect the rights of people you do not like. Even the rights of killers ... must be protected if we want ours to be protected.

Folks, if you are going to downvote me, please explain why. I don't believe I have stated an opinion; I tried to stick to facts. If you think my facts are wrong, please actually correct me.

> the Obama administration Justice department created the Miranda exception

On the contrary, they did not "create" it. They did, however, "invoke" it.

Things start to get murkier in 2002, after the FBI bobbled the interrogation of Zacarias Moussaoui, the 20th 9/11 hijacker—the one who didn’t get on the plane—former FBI special agent Coleen Rowley wrote a memo pleading that "if prevention rather than prosecution is to be our new main goal, (an objective I totally agree with), we need more guidance on when we can apply the Quarles 'public safety' exception to Miranda's 5th Amendment requirements."

That would be the Justice department "creating" the use of the exception as a result of a screwup. Clearly they expected to screw up again, and wanted an out.

Then the Christmas Day bomber, Umar Farouk Abdulmutallab, was apprehended in December 2009, before he could blow up a plane bound for Detroit. The FBI invoked the public safety exception...

So they used the out. Once government gives itself a right, either party is loath to relinquish it.

I feel pretty comfortable being upset with both of them over it.

Bush still living rent free in your head eh? Your post might be taken more seriously by those who know and follow politics if you acknowledged that Obama didn't just carry on with many of Bush's policies, but enacted new laws that make Bush's interpretations pale in comparison.

Agreed. I will add that, in the absence of the Executive Branch making such a substantial signal (as opposed to the rhetorical signals in Obama's speech), at least the "fourth branch" has shone a light on the matter. It is a weak light no doubt, and is characteristic of the spineless institution of local broadcast journalism, but the fact that the issue was mentioned at all implies an evolution of the American psyche on this. If Obama, in his heart, believes in "fairness and justice for all", he has no better opportunity to demonstrate it.

Also, I keep thinking about how events like this (e.g. 9/11) engender sympathy and support from other nations. America can build on that goodwill--rather than dishonoring, abusing, or squandering it--and regain a fraction of international moral stature by ensuring Tsarnaev is treated as legally and morally fair as possible. This is a longer term, strategic goal (i.e. politically, socially difficult) that has been undermined and overlooked for too long.

>regain a fraction of international moral stature

By reading him his miranda rights? He is going to be put to death. The US doesn't need to engender sympathy it needs a credible peer.

I'm not sure that's true.

http://en.wikipedia.org/wiki/Capital_punishment_in_the_Commo...

Federal terrorism charges are almost assuredly going to be filed, too.

It only seems weird if you think of Miranda (and various other procedural protections) as a "gotcha" to hinder police efforts, instead of what it is: a way to keep people ignorant of their 5th amendment rights from incriminating themselves. That's the alpha and the omega of Miranda. It's not a search and seizure protection at all, which is why evidence obtained as a result of a Miranda-less interrogation is nonetheless admissible.

Unfortunately, too many people conceive of the 4th and 5th amendment protections entirely as roadblocks to hinder police for the sake of hindering the police, instead of the targeted checks on police behavior that they are. In doing so they read important parts of the amendments (e.g. "unreasonable" or precisely what a protection applies to, or precisely what sorts of activity a protection prohibits) completely out of the text of the Constitution.

So what's the "public safety exception" about then?

We're starting from the position that, absent a public safety concern, the defendant's right to know his rights is greater than the law enforcement interest in not encouraging the defendant to exercise them, and if the cops don't read the Miranda rights then the statements aren't admissible.

Now throw in a public safety issue -- the cops have to interrogate this guy or some people could get hurt. Why does that change the result? If the public safety issue is more important than reading the defendant his rights, then it's also more important than allowing the police to use the defendant's statements in court, since we've already decided as between those things which is more important. So the consistent outcome should be for the cops to interrogate the defendant and resolve the public safety issue, but for them not to be able to use any of those statements in court.

Is there some non-obvious reason for it to not work that way?

The public safety exception exists so police don't have to decide, before the fact in a dangerous situation, whether to immediately interrogate the suspect and give up the possibility of using what he says to convict him or to read him his Miranda rights and risk harm to the public.

What does it take to read someone their Miranda rights? 20 seconds? The dude has been in custody for hours and they simply said he won't be read them at all. It's not a safety issue at all.

No, Miranda means they don't have to answer questions and they can have a lawyer present.

No. They have those rights whether or not the police remembers to verbally inform the suspect. The suspect has every right to remain silent and every right to an attorney, even if the officer detaining him chooses not to remind him about it.

Kinda sorta, not entirely.

http://voices.washingtonpost.com/supreme-court/2010/06/supre...

"The Supreme Court ruled Tuesday that a criminal suspect must explicitly invoke the right to remain silent during a police interrogation, a decision that dissenting liberal justices said turns the protections of a Miranda warning “upside down.”"

This decision doesn't refute the parent poster's point. The suspect always had the right to remain silent and the right to an attorney. The decision just affirms that you have to explicitly stop the questioning by speaking your intention of that. The minority felt 2 hours of silence and badgering by the suspect indicates a wish to stop the questioning and invalidate further coercive measures to extract testimony.

You're being kinda nit-picky. All the suspect has to say is "I plead the fifth", or something to those lines.

The public safety exception strikes me as equivalent to the enemy combatant exception - a way to just skirt civil liberties when it seems relevant.

For heaven's sake. Assuming that they have arrested the correct person, he and his brother had a stack of tactical explosives that they were throwing around with abandon, as well as having bombed a major public event with loss of life and a huge level of injury. Of course the public (via its designated law enforcement agents) has a legitimate interest in establishing whether all possible explosive devices have been found and neutralized.

Bear in mind that for his trial (if he doesn't plead guilty) they'll have victim witness testimony from a person who says he saw the suspect perform a bag drop shortly before the bag exploded and blew his legs off; abundant photographic evidence, with probably more to come; whatever forensic evidence they found at the brothers' shared home; and all sorts of other information gathered in the days before he was found and captured. There'll be camera footage from the 7-11 that they held up, testimony from the person they carjacked (to whom they apparently admitted that they were the bombers), forensic evidence from the car, vast amounts of ballistics evidence...I could go on and on.

There is no way that his conviction is going to be pendant on what he says before being mirandized, and the public safety exception is about as justified here as it could ever possibly be - far more so than that in Quarles. That was a guy who allegedly had had a gun and was wearing an empty holster when caught. True, abandoned guns can be dangerous. A bumper variety pack of bombs, which it appears this suspect had and employed on multiple occasions in the last few days, presents a substantially greater risk to public safety.

Imagine that the guy knows his Miranda rights, refuses to talk and demands a lawyer. The unsaid implication of the supposed public-safety exception is that the police will do anything to get the guy to talk, constitution be damned.

No it isn't, because it would be a huge gift to the defense counsel who would rightly attack any infringement of his civil liberties (eg if they beat him up or worse). I've heard Alan Dershowitz make such 'ticking time bomb => anything goes' arguments but I think they're fatally flawed, both legally and logically.

  Assuming that they have arrested the correct person

This is not something that you get to assume.

https://en.wikipedia.org/wiki/Due_Process_Clause

The previous poster didn't say "We can assume they have arrested the correct person", they said (in effect), "If we assume for the sake of argument that they have arrested the correct person". Your point is absolutely valid, but entirely separate from this discussion of Miranda.

I'm assuming it only for the purposes of making my argument here on HN, not for determining the guy's guilt or innocence. I have to make some assumptions because I haven't seen any photographs or any evidence myself, so I have only a 3rd hand opinion based on news reports. The people who arrested him, by contrast, are in a position to identify him as the person they saw shooting at them earlier.

If I was sure they had arrested the right guy and that he was guilty of all those things, I wouldn't have put the 'assuming...' in there at all, but just stated what came after as fact.

To be fair, this was probably just a matter of phrasing on his part. Instead of using the word "assume" (triggering a pithy response) he should have stated this:

    If the man the police have arrested is indeed 
    Dzhokhar Tsarnaev, the man implicated in the 
    bombings...

Innocent until proven guilty. The adversarial justice system in the United States is here for all of our protection, including suspected terrorists.

How is that at odds with anything I've written above?

>There'll be camera footage from the 7-11 that they held up

They didn't hold up the 7-11.

http://www.wbur.org/2013/04/15/live-blog-multiple-explosions...

Thanks for the clarification, I missed that update.

  | a way to just skirt civil liberties when
  | it seems relevant

That's exactly what it is, with good reason. When this is used, we are saying that the rights of others trump the rights of this suspect. When we're talking about the possibility of active bombs hidden within a civilian population, I would think it's a no-brainer that the rights of the people to not be blown up trumps the suspect's rights.

Also, as @anigbrowl says, this isn't going to be a case where the majority of evidence comes from the suspect's Miranda-less statements.

Edit: I will admit that this could hurt the suspect's eventual defense. Even if the statements aren't necessary to the prosecution's case, making them admissible in court could limit explanations put forth by the defendant.

If it's as simple as saying "the rights of others trump the rights of this suspect," then why not torture the suspect?

Because it's not simple. There are interests to be balanced and you can bet that defense counsel will challenge that decision pre-trial, at trial, and at appeal - and rightly so, it's not something that should be used with impunity.

Although creative writers love to put law enforcement characters on the horns of dilemmas like this because it makes for great drama, in real life the PIE does not get invoked that often because law enforcement doesn't want to risk blowing a case on it. Here, we're not balancing the public interest against all the rights of the suspect, but against his right to given notice of his legal situation. He could still clam up, ask for a lawyer, have one provided for him if he can't hire one etc., but the difference is that they're entitled under the PIE to ask him for information about outstanding risk factors (and only that) instead of giving him an advisory.

I'm guessing a bit here, but I have a hunch that if he said 'look, I set off those bombs on Monday, I feel terrible...' the interrogating officer would actually respond by saying 'we can discuss that later, now I just want to know about whether there are other bombs or weapons,' both because that's the actual priority and to avoid later legal challenges to do with 'fruits of the poisonous tree,' a colloquial term for improperly acquired evidence.

> There are interests to be balanced

That's why I dislike statements like "party1's rights trump party2's rights." In reality, it's a balance, and that probably means that reasonable people can disagree on where exactly the balance point should be placed.

Because we, as a society, frown on it? Are you really saying that there is a thin line between Miranda-less statements being admissible in court and torture?

Well, there are other arguments against the use of torture - like the fact it produces extremely unreliable information.

It is evident in this case. However, with almost any crime, the right of the people could be considered to trump the suspect right.

It is a normal and sane that a society scrutinise those cases, to make sure the exceptional stays exceptional and not the first step down a slippery slope.

There is an argument for fear in this case. The amount of exception done for terrorism "seems" quite big, compared to, for example, the cases of proven criminal let go for technical reason. Yet, there does not "seem" to be the same amount of exception to avoid due process in the name of public safety.

Also, other exception, like arresting money instead of the people in case of the war on drug. It has been proven many time that this quite clever exception, has been widely abused.

(disclaimer: "seem" between quotes because lack of hard data, and skills to find them. Would be interesting to have them though.)

>When this is used, we are saying that the rights of others trump the rights of this suspect. When we're talking about the possibility of active bombs hidden within a civilian population, I would think it's a no-brainer that the rights of the people to not be blown up trumps the suspect's rights.

Jesus this is scary thinking. You're saying the rights of a suspect go out the window when we can contrive a situation where you think other people's rights are more important?

All rights in law are a balancing act. For example, when people were lobbying to "Grandparents' Rights," codifying such rights into law would have given power in custody-type situations to the grandparents, but at the cost of taking some level of rights away from the parents.

My 'right' to murder someone is taken away by the law because it is deemed that the right of the other person to stay alive is more important.

In this case, the only right that is being taken away is the right to be informed (or reminded) of your rights prior to interrogation. He still retains his right to remain silent, he just isn't specifically told about it by police. The purpose being to allow a line of questioning that would help to eliminate the risk to the general public (in this case accomplices, hidden bombs, ties to terrorist organizations, etc). If they use this as an excuse to ask him questions that clearly aren't going to help resolve the "risk to the general public," I'm sure his defense attorney will have a field day with it.

Kind of how your first amendment rights stop at shouting "Fire" in a crowded theater and causing a stampede

Kind of how your first amendment rights stop at distributing anti-war literature, as in the case that analogy is drawn from?

You can reframe most laws in the same terms.

Civil liberties under the constitution are by and large not ironclad protections. Their scope has always been full of exceptions, because they date back to the privileges of englishman, as decided by common law courts. It has always involved a balancing between the exigencies of the situation, the need for an effective police, and the protection of the accused.

They're not ways of skirting civil liberties. They are ways of defining the contours of their protections.

It kind of seems like the public safety thing is there because they want to have their cake, but also eat it.

  | which is why evidence obtained as a result of
  | a Miranda-less interrogation is nonetheless
  | admissible

I don't know. I think that it seems reasonable that if statements obtained by police from a Miranda-less interrogation are inadmissible, then evidence that is a direct result of those statements should be to. The statements and the evidence that is linked to them seem like they are all part of the same package. The only exception I can see here is if there is a reasonable/convincing argument that police would have obtained the evidence eventually without the aid of the suspect's statements.

That may seem reasonable to you but according to Wikipedia, it's not the law:

http://en.wikipedia.org/wiki/Miranda_warning#Consequences_of...

The public safety exception seems to be for when a Miranda warning would be impractical:

https://en.wikipedia.org/wiki/Miranda_warning#Public_safety_...

I'm not sure if having a reasonable opportunity to read someone their rights, then choosing not to, is in the spirit of the public safety exception. Public danger alone can't be the reason, since the whole reason for criminal law in the first place is to protect the public from danger. Interested if an actual lawyer could clarify.

I think it comes down to the quote in the OP "So while it may sound weird, it turns out that obtaining a statement outside Miranda but not admitting it in court is lawful."

Your assuming the motivation is to violate the suspect's rights. It might not be -- there might be a clear and reasonable aim to find out if there are others involved.

The authorities probably has a lot of evidence & a strong case without the interrogation. That they want to question the suspect about other parties or networks seems reasonable.

It's a tactic, but perhaps their primary motivation isn't to interrogate to get a conviction -- it's to garner a wider net of information. In that case, the Miranda & having the suspect clam up would be a hinderance.

Since this is the first time I can remember hearing of law enforcement announce that Miranda was not given tells me that he's already said something and they're just getting ahead of the cycle by putting the rationale out there.

It seems that your rationale requires that you have heard of a lot of similar cases. Can you recall the other similar cases you have heard of where LEOs did not mention mirandizing the suspect?

Yes: all of them. That's what makes this one stick out to me.

Name five previous cases with a public safety exception to miranda that you can think of.

You're changing the subject. It's not whether it has happened in the way you want me to describe, it's that it hasn't.

If it doesn't matter, then why don't they just read him his rights? If reading the rights is just a formality, then why all the effort and trouble to avoid doing it? The problem really isn't this case specifically, the problem is what this says about the attitude of the government toward the rights of people who are accused of crimes. The government seems to be sliding toward the position that accused people do not have rights, and this is troubling. Basically, it is an important to ask whether the government should be allowed to have whatever it is that the government believes it is gaining by not reading the suspect his rights in this case.

> Basically, it is an important to ask whether the government should be allowed to have whatever it is that the government believes it is gaining by not reading the suspect his rights in this case.

Supposedly, the government believes it is gaining "no bombs more bombs exploding people in Boston" as they get the opportunity to evacuate and/or defuse, if there are any more bombs in the first place. I don't think we should deprive them of that, precisely...

Miranda is very complicated. It generally means that the person cannot be interrogated. The penalty for violating the rule is that anything said is inadmissible. That is an important difference. If, for example, the witness isnt read his Miranda rights but just chooses to say something, that is fair game because he wasnt being interrogated. (Further, this is also a simplification, the full extent of Miranda is complicated, so this is just a perhaps overly broad taste)

This isn't correct.

The public safety exemption to Miranda rights DOES allow the results of questioning to be used as evidence. That is what is happening here.

This exception stems from https://en.wikipedia.org/wiki/New_York_v._Quarles

> It only acquires relevance if the government seeks to have the statements admitted at trial.

Or any evidence that those statements lead them to, if I'm not mistaken.