US Citizen Terrorist Acts and the Constitution

The Miranda warning is a criminal procedure rule that law enforcement officers are required to administer to an individual who is in custody and subject to direct questioning or its functional equivalent in order to protect his or her Fifth Amendment right against compelled self-incrimination. In Miranda v. Arizona, the Supreme Court held that the admission in a criminal trial of an "elicited" incriminating statement by a suspect not informed of these rights violates the Fifth and the Sixth Amendment right to counsel. So, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained, but may not use that person's statements to incriminate him or her in a criminal trial. The Miranda rule is not absolute and can be more elastic in cases of public safety. Under public safety exceptions, to be admissible in the government's direct case at a trial, the questioning must not be "actually compelled by police conduct which overcame his will to resist," and must be focused and limited, involving a situation "in which police officers ask questions reasonably prompted by a concern for the public safety." The public safety exception was very narrowly applied until 2010, when the Federal Bureau of Investigation encouraged agents to use a broad interpretatieon of public safety-related questions in terrorism cases, stating that the "magnitude and complexity" of terrorist threats justified "a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case," listing such examples as: "questions about possible impending or coordinated terrorist attacks; the location, nature and threat posed by weapons that might pose an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks." A Department of Justice spokesman described this position as not altering the constitutional right, but as clarifying the existing flexibility in the rule. ~~~~~ Based on the above, dear readers, it seems clear that the FBI has the right to interrogate the Boston bombing suspect on certain elements surrounding the bombings without administering his Miranda rights. Of course, if the suspect were to be treated as an enemy combatant he would have even fewer rights to protection from self-incrimination. But, the White House announced earlier this week that the surviving suspect will not be tried as an enemy combatant in a military tribunal. White House spokesman Jay Carney said Dzhokhar Tsarnaev will be prosecuted in the federal court system, a conclusion supportd by President Obama’s entire national security team. On Monday, federal prosecutors charged Tsarnaev with one count of using a weapon of mass destruction and one count of malicious destruction of property resulting in death. The charges authorize penalties including death, life in prison, or a term in prison for any number of years. Tsarnaev is a naturalized U.S. citizen and the White House said that under US law, American citizens cannot be tried in military commissions as an enemy combatant could be, adding that since 9/11, the federal court system has been used to convict and incarcerate hundreds of terrorists. And, without being bound by the Miranda rule, the federal prosecutors will arrive at essentially the same interrogation place as if Tsarnaev were to be treated as an enemy combatant. And because he is a US citizen, the prosecution is precluded from sending him to a military court or to Guantanamo Base. Either of these might yield slightly more intelligence but a federal civilian interrogation and trial without the Miranda rule applying to what the suspect may know about terrorist acts in the planning stage or about about other terrorist activiies may well be just as successful. In the meantime, the White House and the Justice Department ought to be engaged in preparing a comprehensive legal framework, with draft legislation, to cover this area - US citizen terrorist acts on US soil, with suggestions for specific monitoring techniques that would pass constitutional muster - for future cases that may not be as clearcut as the Boston bombings case.