(update below)

During the press conference after Boston bombing suspect Dzhokhar Tsarnaev was arrested and taken to a hospital seriously injured, FBI Special Agent in Charge Rick Deslauriers told reporters the communities of Boston, Cambridge, Watertown and other cities could “breathe a sigh of relief knowing” there was “no longer a threat to our personal safety and to our communities.” Boston Police Department Commissioner Ed Davis also stated, “I think based upon our investigation at this point in time, the citizens of the city Boston and this area can be confident that the threat has been removed.”

Without a threat to public safety, it would seem the Justice Department would not be able to turn around and invoke a public safety exception and decide to not read Tsarnaev his Miranda rights yet. Yet, that is exactly what was done.

US Attorney Carmen Ortiz, who is now infamously known as playing a role in over-prosecuting and driving Internet activist Aaron Swartz to his suicide, said, “There is a public safety exemption in cases of national security and potential charges involving acts of terrorism. And so, the government has the opportunity right now, though I believe that the suspect has been taken to a hospital.”

Alan Dershowitz appeared on CNN and appropriately expressed concern, “They can’t have it both ways. They can’t announce that public safety is over — that everybody’s safe, this is over, it’s behind us, but we still need a public safety exception.” He added, “They should give him his Miranda warnings. They should give him a lawyer,” and, “Let’s not give any excuse to be able to successfully argue that his rights were denied.”

Former US Attorney Kendall Coffey agreed on MSNBC’s “The Rachel Maddow Show” that this was a pushing of the envelope. The overt statement in advance that Tsarnaev would not be read his Miranda rights was a new expansion in the use of the “public safety exception.” But, Coffey argued this was basically a splitting of the difference, where this was being done to possibly give the Justice Department cover to still try him in a civilian court and not ship him to Guantanamo.

The Miranda rule essentially requires law enforcement to inform US citizens they have a right to remain silent and a right to an attorney, but there is this “public safety exception” as Slate‘s Emily Bazelon explained:

In the 1984 case New York v. Quarles, the Supreme Court carved out the public safety exception for a man suspected of rape. The victim said her assailant had a gun, and he was wearing an empty holster. So the police asked him where the gun was before reading him his Miranda rights. That exception was allowable, the court said, because of the immediate threat that the gun posed.

But, the cases of Zacarias Moussaoui, the 20th 9/11 hijacker, the Christmas Day bomber, Umar Farouk Abdulmutallab and Faisal Shahzad, the Times Square Bomber, have all made it easier for the government to make a claim that they do not have to read a suspect his Miranda rights immediately upon taking him or her into custody. Both Abdulmuttallab and Shahzad, as Bazelon pointed out, ”was interrogated without Miranda warnings via the public safety exception.”

“The FBI considers the exception to be a ‘powerful tool with a modern application for law enforcement,” wrote Carl Benoit, a legal instructor at the FBI Academy in a law enforcement bulletin,” Jacob Gershman of the Wall Street Journal highlighted. Benoit contended, “When police officers are confronted by a concern for public safety, Miranda warnings need not be provided prior to asking questions directed at neutralizing an imminent threat, and voluntary statements made in response to such narrowly tailored questions can be admitted at trial.” Again, there was no stated or acknowledged “public safety threat” detailed by officials in the press conference the night Tsarnaev was arrested.

Authoritarian Republicans like Senators Lindsey Graham, John McCain, Kelly Ayotte and Congressman Peter King have made it seem like it is outrageous to read terror suspects their rights. They released a joint statement this morning celebrating the “decision to not read Miranda rights to the suspect” as “sound and in our national security interests.” But, complained, “We have concerns that limiting this investigation to 48 hours and exclusively relying on the public safety exception to Miranda, could very well be a national security mistake. It could severely limit our ability to gather critical information about future attacks from this suspect.” They urged President Barack Obama to designate Tsarnaev as an “enemy combatant” under the Laws of War because America continues to “face threats from radical Islamists in small cells and large groups throughout the world.”

President Obama has actually embraced some of this authoritarianism. In March 2011, Evan Perez of the Wall Street Journal reported, “New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.”

According to an FBI memorandum, it would apply to “‘exceptional cases’ where investigators ‘conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers.”

Attorney General Eric Holder was responsible for changing the guidelines, as Republicans like Graham, McCain and King had been loudly criticizing the Justice Department and even argued terror suspects should be sent to military detention.

When Holder proposed an expansion of the “public safety exception” in 2010, three former FBI agents wrote a letter where they declared their opposition any changes, “As professional interrogators who have spent decades questioning accused criminals – including spies and terrorists – we are writing to make clear that interrogators can do their job using the existing Miranda rules.”

They added:

In our decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with our ability to obtain useful information or make prosecutable cases. Miranda doesn’t undermine the ability to bring criminals to justice, incompetent investigators and untested laws do. We must not abandon our nation’s fundamental rule of law in the name of preserving public safety and convicting terrorists. If we abandon our laws and apply draconian methods in response to terrorist threats, then the terrorists and their quest for lawlessness will have won. What’s more, their victory will jeopardize our ability to bring those terrorists to justice later.

Americans are expected to believe that giving a person like Tsarnaev Miranda protections will make it not only challenging to prosecute him as a terrorist but will also inhibit law enforcement’s ability to fight terrorism and thwart any future attacks. But, there is absolutely no factual evidence underlying this hysterical claim.

Furthermore, what is important to understand is that the issue of not reading Tsarnaev his rights immediately is not about showing weakness in the face of evil. It is not about granting “privileges” to a person who should not have them because he is believed to have committed an act of terror. It really is a symptom of this chilling concept that Graham articulated yesterday when Tsarnaev was still being hunted by police and military forces in Boston: “The Homeland is the battlefield,” and it is a battlefield because “the Terrorists think it is.”

The War must be fought in America—in the Homeland—because there is no choice. It can either be waged vigilantly by America or, if not, Terrorists will fight us here and the country will be attacked. This is why the editorial board for the Boston Globe defended surveillance cameras. This is why there have been calls this week for a greater expansion of the Surveillance State.

Those with this authoritarian mindset find it irrelevant that none of the Surveillance State apparatus was able to prevent Tsarnaev and his older brother, Tamerlan, from bombing the Boston Marathon. They will shrug off arguments focusing on how heightened security at the marathon failed to see the two men planting the explosives that ultimately killed three people and wounded well over 150 people. And, they will downplay any suggestion that the FBI should have been onto Tamerlan because they had interviewed him two years ago—if that suggestion is made.

Devout believers in the national security state have no evidence to support further escalating its intrusion into the lives of Americans or the scale in which it violates civil liberties to keep America “safe.” They only have the emotions of fear and hysteria among Americans, which they play upon after the shock of an attack or incident, when the national security state has failed.

That is why it is possible for the Obama Justice Department to get away with not reading Tsarnaev or any suspect or criminal his Miranda rights immediately. Those emotions color many Americans’ views. So, all the Obama administration and those in law enforcement have to do is craftily express the “threat” or “danger” posed by a person, and it becomes shamefully easy to deprive a citizen of rights most Americans take for granted.


The ACLU has released a statement on Tsarnaev not being read his Miranda rights immediately.

“Every criminal defendant is entitled to be read Miranda rights. The public safety exception should be read narrowly,” Anthony D. Romero, executive director of the ACLU stated. “It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule. Additionally, every criminal defendant has a right to be brought before a judge and to have access to counsel. We must not waver from our tried-and-true justice system, even in the most difficult of times. Denial of rights is un-American and will only make it harder to obtain fair convictions.”

Update 2 

Center for Constitutional Rights executive director Vincent Warren issued this statement:

Our thoughts go out to the friends and families of victims of these horrific bombings. While it is difficult to turn to points of law in times of tragedy, those are, in fact, the times we most need to cling to the values, laws and rights that make us who we are as a nation.

The Miranda warnings were put in place because police officers were beating and torturing “confessions” out of people who hadn’t even been formally accused of a crime. We cannot afford to repeat our mistakes. If officials require suspects to incriminate themselves, they are making fair trials and due process merely option and not a requirement. To venture down that road again will make law enforcement accountable to no one.

Like Obama’s expanded killing program and his perpetuation of indefinite detention without trial at Guantanamo, this is yet another erosion of the Constitution to lay directly at the President’s feet. Obama’s Justice Department unilaterally expanded the “public safety exception” to Miranda in 2010 beyond anything the Supreme Court ever authorized. Each time the administration use this exception, it stretches wider and longer. However horrific the crime, continuing to erode constitutional rights invites continued abuse by law enforcement, and walks us down a dangerous path that becomes nearly impossible to reverse