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Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights? (slate.com)
377 points by mojaveblues on Apr 20, 2013 | hide | past | web | favorite | 256 comments

You shouldn't care. Because not reading someone under arrest the Miranda warning is constitutionally irrelevant in and of itself. It only acquires relevance if the government seeks to have the statements admitted at trial.

Discussing the similar case of Faisal Shahzad, who attempted to bomb Times Square, Orin Kerr, a law professor who is an expert on the 4th Amendment wrote:

"Importantly, though, it would not have violated Shahzad’s constitutional rights to not read him his Miranda rights. A lot of people assume that the police are required to read a suspect his rights when he is arrested. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement that would be inadmissible in court. Chavez holds that a person’s constitutional rights are violated only if the prosecution tries to have the statement admitted in court. See id. at 772-73. Indeed, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement is excluded. See United States v. Patane, 542 U.S. 630 (2004). So while it may sound weird, it turns out that obtaining a statement outside Miranda but not admitting it in court is lawful."

Oops, link: http://www.volokh.com/2010/05/05/shahzad-and-miranda-rights/

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.

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.


"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.


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 

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.


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:


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


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.

Sir Thomas More: What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

I had not heard that quote before but it really spoke to me. That's a very articulate statement of why Guantanamo and other modern injustices "in the name of freedom" are simply not so. I want every despicable terrorist to have a fair trial so that when my time in court comes (if it ever does) I know I'll have a fair chance.

It's from a play called 'A Man for All Seasons', doesn't diminish its relevance though.


Jesus people. Read about what the "public safety exception" actually is before going all police-state-paranoid.

If the FBI or police try to misuse or abuse the public safety exception to attempt to get Tsarnaev to incriminate himself then they are going to have some fun times in court and get their asses handed to them. I'm skeptical that that's what's happening. I'm also skeptical that he's not been read his rights before being interrogated. Let's keep our heads on straight and avoid operating on incomplete data.

"Dzhokhar Tsarnaev will not hear his Miranda rights before the FBI questions him Friday night" [id.]

This implies he'll be going through a potentially long interrogation with the FBI that may be admittable as evidence, without having been given a Miranda warning. There is definitely something about this application of the "public safety exception", and the stare decisis discussed in the article, that gives cause for concern. We generally prefer citizens to know of their fifth amendment protections prior to a custodial interrogation. The fact he was in possession of a weapon or other armaments in his person should not defeat this aim.

Lets remember, this guys is just one guy. They have enough on him to put him away for life, even should he say nothing, ever.

Public safety is involved because, lets see, millions of people were locked in their homes, a public curfew was in effect, the dead were piling up, and no one knew how many more bombs or co-conspirators were still at large.

They have a duty to learn the full extent of the terrorism, and protect the public, First. Then, worry about prosecuting this one guy's sorry ass.

>This implies he'll be going through a potentially long interrogation with the FBI that may be admittable as evidence, without having been given a Miranda warning.

Any statements before the Miranda warning are inadmissable in court:


"if the defendant is in possession of information regarding ... exigent circumstances which require protection of the public, the defendant may be questioned without warning and his responses, though incriminating, will be admissible in evidence"[1]

The public safety exception allows for some latitude for police to gather admissible information prior to giving a miranda warning.

[1] http://en.wikipedia.org/wiki/Miranda_v._Arizona

This is correct. However, as I understand it, a defense attorney can throw holy hell to prevent the admission of such statements in court and has a decent chance of winning.

They don't need him to say a word to convict him of a staggering number and severity of crimes. I would be surprised if they even bother trying to admit as evidence anything he says during interrogation, and after chatting with a couple of con-law lawyers who all concurred I feel that's a pretty fair guess.

> Any statements before the Miranda warning are inadmissable in court:

That is completely false, and suggests you haven't read anything in this entire thread discussing these issues, including the link you link to.

Why even have an exception? Surely public safety is more important than trying to add a confession to all of the other evidence. The exception seems like something that could be abused in other cases.

I'd go further, and say that no statements made by an accused person should be admissible in court. That way, you don't give any incentives for coercion.

I recommend this Guardian comment on the same subject:


I don't think refusing the accused a voice would really help the investigation of most cases, nor the course of justice. But the path the US (and allies, such as Great Britain) have started down is a very dark one.

There is literally no point having rights at all if there are exceptions to those rights which can be used but authority when things get difficult or controversial. A right is universal, if there is an exception, its is no longer universal, there for no longer a right. If a right is not universal, it becomes a privilege.

The whole point of rights is to protect individuals when things get difficult, when people's emotions or political bias over ride actual justice.

When everything is normal and fine, what do you need rights for? Nothing what so ever. You only rely on them in the extremes, when things go wrong or when you are being unfairly treated by the state (or business). But that is exactly when government, law enforcement, etc want to suspend them, and they do. So, in the end, it become totally pointless.

Let's cut to the chase, what if, as in this case, granting an individual their full rights could deprive others of their rights, like the right to not be blown up by another bomb?

You are suggesting that rights only have value if there are no exceptions to those rights. I disagree.

Rights have value, but there must be a way to assign value to each individual right for each person, otherwise, when you cannot grant everyone in society all of their rights simultaneously, how do you decide who gets which rights and who does not?

You example is so extreme as to be redundant. You are essentially arguing for abuse of human beings, in a wild exaggerated "24" type scenario, that doesn't really exist.

If my rights depend on abusing other human beings, I don't want them. They are worthless, because one day it could be me, or you.

Are you really prepared to give up your rights if law enforcements believes you threaten the rights of others? Would you accept it if you could not challenge that? Really? I bet you just assume it only happens to other people.

Lastly, this notion of every one getting their human rights simultaneously is absurd. As I said, they are only required when things go wrong or are difficult for a public to be reasonable and fair. I don't need my right to not be blown up while a police officer is observing Miranda rights, for example. This suspect's right to a free and fair trial has no baring on my right to not be harassed by government, or be blown up. Its a totally false premise, which makes no sense.

It is not a zero-sum game. Depriving a right from a suspected terrorist does not necessarily guarantee the right of some other, unrelated person. Rights are rights, selectively applying them is the slipperiest of slopes.

There wasn't an assertion that depriving one person's rights necessarily (in all possible cases) guarantees others' rights. The implication was that there are real cases where this is the case.

Every criminal case could be similarly described as one in which allowing the defendant their legally guaranteed rights (to remain silent and have legal advice) could (through strengthening the defendant's case and allowing silence on the question of co-conspirators) lead to someone depriving others of their rights (not to be victims of crime, from murder to graffiti). The question is not how to weigh these peoples' rights against each other. Instead, we have set standards on what the police are allowed to do and what the police are not allowed to do. The question is whether the police are failing to follow these standards.

As to the other questions, if an actor deprives another person of their rights, we assign the blame to the actor alone and not to any third party who allowed it to happen unless it can be proven that the third party had the intent to allow it to happen and were therefore co-conspirators in the crime. Where rights conflict, the questions of who gets which rights and who does not are answered by writing laws and judicial opinions. Several hundred years of such work has produced ready answers for most situations.

The rights here are the Miranda rights, not the requirement to be told about them. There's no exception to those rights being discussed as far as I can tell, just an exception to the requirement.

For people asking "how do we know he wont be read his rights" its because the DA Carmen Ortiz[1] said she wouldn't in the press conference immediately following the suspects capture[2].

1. https://petitions.whitehouse.gov/petition/remove-united-stat...

2. I haven't been able to find video although I saw it live, this site confirms http://www.theblaze.com/stories/2013/04/19/boston-bombing-su...

Unfortunately, this gives Carmen Ortiz every chance to be known for something other than the prosecution of Aaron Swartz.

Serious question... Have we verified that the reason he hasn't been mirandized yet is anything other than the fact that he's in serious condition and may not yet be able to affirm that he is aware of his rights?

We haven't even verified that he hasn't been mirandized yet.

So, no.


A DOJ official explains why Boston Marathon bombing suspect Dzokhar Tsarnaev has not been read his Miranda rights.

"The suspect is en route to the hospital for immediate treatment," the official tells TPM's Sahil Kapur. "But we plan to invoke the public safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence."

The public safety exception allows law enforcement officials to question suspects briefly in a legally admissable way prior to providing Miranda rights in cases of terrorism or when the public might face imminent threat.

I'm fairly sure that the various agencies and investigative apparatuses have generally come to the consensus that there is no remaining threat, and have explicitly said as much. How can they invoke this Exception when they have stated (and, now as it has become obvious) that there is not a threat? It just seems that invoking the Exception is tantamount to a post facto repudiation of their previous statements, and would require some sort of justification for a reemergence of a threat other than some assertion that conflicts what the entire rest of the world has agreed upon (something which they don't seem to have). They're trying to have their cake and eat it, and it doesn't seem as though it will go over well in court.

I'm not versed in the law at all, but this seems intuitively sketchy and lacking in justification. Am I missing something?

What amazes me is how quickly law enforcement starts using various loopholes. It doesn't seem to be necessary here and reading Miranda rights takes less then 30 seconds, still they're not doing it. To think of another example several years ago it was a common knowledge that tasers could be used only when there is threat to others now it is standard practice to taser anyone who doesn't follow police orders.

The Miranda Warning reminds people that they don't have to say anything and that there's no real benefit to doing so anyway. If you want maximum information out of someone, then it runs counter to that, so you would prefer not to say it if possible. There's a great two-part youtube video on the benefits of the 5th Amendment, the second part is with a 30-year veteran police officer who talks about strategies around the Miranda warning [1]

Here in Australia, things are a little different - not talking to the police can be held against you in a court of law, as you've hindered them in their duties. I'm not sure of the details, just that the local law advice sites say "It's not like in the US on TV".

[1] http://www.youtube.com/watch?v=i8z7NC5sgik

Tsarnaev and his brother planted bombs. It is not unreasonable for the FBI to be concerned that they may have left other bombs in place that could detonate later. Or, that there were other people involved that we don't know about. Invoking the public safety exception to the Miranda rights seems prudent to me.

No, Tsarnaev and his brother did not plant bombs as of the current moment. They are SUSPECTS in a criminal investigation in which one or more parties planted bombs.

Be VERY, VERY careful before you throw out that distinction. One day you may find yourself arrested for something you did or didn't do, only to find public opinion very much against you based on little more than hearsay.

Ya know, I'm all for "innocent until proven guilty" but blury pictures of them dropping a bag, a witness description, a car chase where they threw bombs out the window, a shootout where one brother got hit with shrapnel of his own pressure cooker bomb, etc.

Let justice do its blind thing but it's OK for us to state the obvious. They did it.

I'm getting the feeling the defense is going to have a hell of a time finding an impartial jury.

Especially when the general public main source of intel is flipping to CNN or Fox between a Honey Boo Boo commercial breaks.

We wouldn't want them to be confused with the facts.

There's an apt civil liberties saying, "a conservative is a liberal that's been mugged, and a liberal is a conservative that has been falsely accused." I think the likelihood that they are being falsely accused in this case is very, very low, but your point is valid. I should have wrote that they were suspected bombers.

You got it. =)

I am embarrassed to say that I got caught up in the "reddit is internet detectives" on Thursday and Friday. It was only after a lot of thought Friday evening that I realized where my own head was and how far away from where I wanted to be I was.

Or so thats what we are being told at this point without any evidence being presented in court with a trial in front of his peers…

But believe in your State™.

It is slightly unreasonable to require the State™ to present evidence in court at this time, when the first priority is to take the wounded suspect to hospital, and ensure that there are no explosives left behind that could kill others.

I do believe that the State™ (in this case, not my state, as I'm not American) has the right and the responsibility to do what they are doing.

You also left out the plan to interrogate him for information that could be admissible in court that would/could conflit with self incrimination as reference in the 5th amendment.

But hey, lets us tort laws because the ends justify the means, because we all know something like this will never happen again once this person or all possible related persons are brought to justice.

If you don't like the "Public Safety Exception," then lobby to get rid of it. I wouldn't suggest doing it in this case because there is likely enough evidence to convict him of multiple serious crimes without him uttering a peep (i.e. this isn't a good case to push towards the Supreme Court to make a decision on).

Who do you think I am? Goldman Sachs? I'm just a lowly peasant who has no say in the political process and the manufacturing of our laws, like most americans (and voting is much as a say in the political process as convicted felons chances at getting a job after being released from prison).

Well if the FBI has to release photos to the public for people they were already well aware of, I'm sure anything they call evidence would suffice, much in the same manor Netanyahu could parade in front of the UN with his Wile-e-Coyote poster.

  | I'm just a lowly peasant who has no say in
  | the political process
You could just start a group based around your ideas. Once you get enough people together the group becomes a political force.

  | Well if the FBI has to release photos to the public
  | for people they were already well aware of
You do realize that there was a shoot-out with police, in addition to multiple other felonies committed after they released those photos. The guy doesn't even need to be convicted of the bombing to spend serious time behind bars.

Additionally, they don't need to know who someone is to have evidence that they did something. They could have a video of him planting the bomb, for example. Just because they don't know who it is in the video doesn't mean that they don't have evidence once they connect the face with a name.

"You could just start a group based around your ideas. Once you get enough people together the group becomes a political force."

Well after consulting with people behind some of tech behind OWS, I doubt something like this would be effective. After all, you paint a big red x on yourself for the FBI spooks to go after, while senators and bankers call you domestic terrorists while the police and private security beat you in the streets for not staying in the "Free Speech Zones". I think letting the country go down the path most of its citizens are willing to let if come to will suffice.

Yes, no doubt this person will be going to prison. But you suggest that they dont know who was in the video, and even the FBI has stated that they were well aware of who they were before the incident had even taken place. People have been saying matter-of-factly that they planted the bombs… gee wiz, I wonder where they got that idea since they haven't been convicted of anything yet.

In the meantime I'll keep pushing code and my matsci knowledge to Defense Distributed, since we all know real political power comes from the barrel of a gun (or a drone…).

<blockquote> Well after consulting with people behind some of tech behind OWS, I doubt something like this would be effective.</blockquote>

You could try doing it without calling for a war to kill everybody who disagrees with you, without turning to violence as your first resort, without trying to change the names of public parks that were named after civil rights activists, without raping the women who make the mistake of joining your movement alone and before becoming members of the protected in-crowd, without the antisemitism, without seizing or destroying public property, without trying to divide society against itself, without shitting on police cars, without demanding that other people pay for the costs of your expenses that you create, etc, etc.

TL/DR: Don't be a bunch of fascist yobs or else society might treat you like you're a bunch of fascist yobs.

Haha you make it sound as if I was deeply involved with them like a religious zealot of sorts.

I was just helping them out with technical things and stating what I saw + heard from their experiences.

As I mentioned already I think this type of protest is highly ineffective in country where you can effectively shut down a city with coercive fear mongering.

But hey, people are willing to let it become like this so it will only continue. I'll sit back and watch the State™ wash itself in its own flames :D

Your use of TM™ indicates to me that you are arrogant and cynical. You personally can't make the world better (see: dictator) and that really hurts an ego.

You would rather see yourself as a helpless pesant being oppressed than admit you're closer in status to the bourgeoisie.

You sound like my old friend Steve. So let me say this: don't do anything stupid, you will get caught. I think he's out of prision now but I don't talk to him anymore.

Dang, I guess everything is out in the open now!

I was really hoping that I could personally make the world a better place by engaging in discussion on HN that would ultimately go on to change the world, and ultimately gain some much needed ego points I could cash in for that Tesla™!

Thank you almighty oracle, you have brought me salvation! :D

P.S. Steve is probably better off without you in his life :P

If they cared so much about public safety, they should be willing to disregard a bit of testimony to get it.

It's insane that confessions are admissible at all really, since they are almost always false.

This is one of the greatest misconceptions about how interrogations are done. In the Spanish Inquisition and Salem witch trials, the tortured to get confessions. In terrorism interrogations (which do include water boarding and other tactics), the goal is to get information. The information they gather is not treated as factual unless it can be confirmed or corroborated from other sources.

When Khalid Sheikh Mohammed was interrogated, they only asked him questions that they already knew the answers to. They weren't immediately trying to get information. They were trying to get cooperation. Once he started answering truthfully, then they asked him questions for information.

Can you provide a reference?

This paper cites two previous studies showing false confession rates of 14% and 20%: http://web.williams.edu/Psychology/Faculty/Kassin/files/Russ... [pdf]

Good reference. Seems a far cry from "almost always false".

I thought witholding Miranda means that anything he says is inadmissible as evidence in a court of law – but it's not like there's a lack of other incriminating evidence so that they would need to use self-incrimination to form a case against him.

No, Miranda is very often misinterpreted. It generally means that the person cannot be interrogated. The penalty for violating the rule is that anything said is inadmissible. 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)

Yes, the only difference the public safety exception makes is whether the statement is admissible against him.

In this case, it seems pretty unlikely to actually matter.

They don't care. They have enough evidence to put him away for life, or to even execute him.

Massachusetts does not have the death penalty.

It will be tried in federal court.

The federal government does

Doesn't terrorism make it federal?

I'm more concerned that Lindsey Graham and John McCain are hoping to declare this kid an "Enemy Combatant"

After attacking the president's legalese regarding hypothetical drone strikes on citizens. Political theatre, the lot of it.

Not McCain. He strongly criticized Rand's filibuster.

Because lawmakers are terrified of proper process under our legal system, really says a lot (remember most Senators are lawyers).

I guess all rights can have restrictions in this country except gun ownership.

Several Senators have insisted he should NOT be mirandized a couple days after voting down background-checks for all gun sales. I don't understand how they can not implode from their lack of consistency.

What pisses me off most about fanatic gun owners who talk about their rights and being able to protect themselves in case the "government goes rogue", is that they seem to be very apathetic, or even supportive of measures such as this or of government infringing other rights like the 4th amendment, the 1st, the 5th, 6th, etc. You'd think that the people so worried about the government going rogue would be the first to be outraged by such infringements of rights, too. But apparently not.

Be careful. That kind of rhetoric is one step away from, and seems to be intended to imply, the claim that the pro-gun position is itself invalid or less valid because of other positions held by some of its proponents, which is textbook fallacy.

"Be careful"?! I have to say, that sounds rather menacing!

I think the argument is specifically about how the positions they hold are inconsistent. This says nothing about the positions themselves. Doesn't even imply it, to my eyes!

What's more insane is now they are saying in the senate "well we better be careful now about immigration reform", yet still no guilt over how the heck those two had so many guns despite been watched by the fbi after a request from russia and why, even with the cop they killed and during the shootout with police you can hear dozens of shots from him in just several seconds.

So apparently immigration restrictions despite there will always been some who immigrate illegally = okay, but gun restrictions even though there will always be some with illegal guns = nope.

I have always wanted to keep an M249 around the house but I keep hearing that I can't as a civilian. I'm glad someone else recognizes thatI have a right to unrestricted access to SAWs. Can you point me where I can find this legal precedent so I have it ready when those whiny ATF thugs come after me?

"if prevention rather than prosecution is to be our new main goal"

I find this increadibly dangerous. Does that mean the police will move against "potential" crimes? Against people making plans? I hereby jokingly declare that I am planning to steal a cucumber at my local supermarket. Does this make me a goal of preventive action? Did I commit a thought-crime?

1984 and Minority Report come to mind when people say stuff like this.

Crimes like "it is illegal to drive and use a mobile device" and "it is illegal to drive while intoxicated" are meant to be preventative. You are committing a crime merely by creating the risk that something bad could happen.

But where does it stop? If, hypothetically, children raised by a single mother are more likely to commit violent crimes, then it ought to be illegal to be a single mother. That sort of law, which seems crazy, seems to be along the same thought process of why you shouldn't use your cell phone while driving.

Because it comes down to balancing rights, and determining which ones are absolute, and how we weight other rights in relation to each other.

So the right to a family life (to use the EU term) is held to be very important, and thus the bar to sterilisation/removing children is really high. The right to use a phone whilst driving on a publicly maintained road is not. Especially as the public's right not to have a 1 ton+ vehicle travelling at speed driving in an impaired fashion is quite important.

Plus it is about mitigating harms. Handsfree kits are allowed for example.

The exact thing happens in this case. His right to be silent or have a lawyer present is not infringed. His right to be informed whilst being asked questions relating to public safety about future threats is being infringed, because society shouldn't have to choose between future potential victims and prosecuting an individual for crimes already committed.

Conspiracy is already a crime. Your cucumber example wouldn't attract a response because nobody actually cares enough to prosecute it. For example if your cucumber was made of solid goal then you would become a target of preventive action.


IANAL, but I believe that in most jurisdictions conspiracy requires two or more co-conspirators (i.e. the crime of conspiracy to commit a crime means two or more people agree or plan for a crime to be committed).

Attempting to commit a crime is also a crime in many jurisdictions, and only requires one person - maybe a prosecutor could convince a court that Derbasti was going to steal something, as demonstrated in a HN comment, but the plan was foiled.

Also, perhaps it is a threat - if other comments could be used to show that he/she was threatening the local supermarket unless they do something, perhaps charges for threatening could be filed.

Yup, conspiracy was just the first example that came to mind. The actual class of crimes is inchoate offences (found after some brief googling).


Luckily, this applies mostly to English speaking countries. The rest of the world seems to require some actual criminal action for prosecution.

Lucky for people planning crimes I guess, unlucky for the rest of us.

Edit: Your claim that this is limited to mainly English speaking countries is not even true.

"Most nations prosecute inchoate acts (such as conspiracy and incitation) in their domestic criminal law."



As far as I can see, most jurisdictions require some action beyond mere thought or talk. Two guys talking over their beers at a bar is not enough. At least that is what the German Wikipedia is saying about European law.

Well sure, you'd have to actually be seriously planning to commit the crime to be prosecuted for it.

The Miranda warning is just that, a warning. Some people mistakenly call it the Miranda rights, which is wrong. Your rights are in the Constitution, and the Miranda warning just reminds you of those rights.

Now, the question is this: do the authorities make a big deal of not reading him his Miranda warning simply because they expect that if they do he will excercise his rights? Or are they implying, without saying it explicitly that he has no constitutional rights? If it is the latter, then this is worse than declaring him an enemy combatant (for which I see no basis), since now it basically means that anyone the Feds want to nail badly enough can fall under this category.

Imagine a hacker who responsibly disclosed a security issue with some military property being declared as having no fifth amendment rights. Does that sound like a precident we want?

I am not in any way trying to condone Dzhokhar Tsarnaev's actions. At the very least, he fired shots at the police on his own accord and I am fairly certain we will find out a whole lot more terrible stuff as the investigation continues. However, I am not a fan of how the interrogation is being presented.

It's entirely to the authorities whether to Mirandize the suspect or not. Perhaps they think they already have so much evidence that they don't need any statements from the interrogation to convict. In that case, they're just looking for information.

Remember, the authorities are perfectly free to interrogate you as much as they like without reading you any warnings at all. It's only at trial that the warnings become relevant. If your case isn't going to trial, it's not relevant.

Agreed. You have no right to the warning and the warning itself is only there to protect the evidence the authorities may gather.

My issue is that despite the horrific things that the suspect allegedly, and in my mind certainly, has done, he has certain rights, like the right to remain silent and the right to representation. Whether the case goes to trial or not, is irrelevant to how the detainee is treated. Otherwise, the police can pick you up, rough you up, prevent you from contacting anyone on the outside world, and then release you, saying that they never intended for you to go to trial, so it's all good.

> Remember, the authorities are perfectly free to interrogate you as much as they like without reading you any warnings at all.

I don't believe they are. I believe they need probable cause, and they need to charge me with something first. Otherwise, I would be living in a police state where I am presumed guilty unless proven innocent. The warning itself is meaningless. It only comes into play if I can reasonably claim that I did not know the Constitution.

Because one day it might be you who doesn't get read their rights.

The Miranda rights are not the right to be read the Miranda recitation, although Miranda did involve that requirement. He actually will not have the right to remain silent. It may mean that his statements are not admissible, but it also means that the interrogators will not leave him alone if he asks for a lawyer or provide a lawyer during questioning. He cannot invoke his Miranda rights even if he knows them.

No, you're wrong. He has the right to remain silent and the right to counsel; the article even mentions that. The right to remain silent and right the counsel are built into the Constitution and can't be waived so easily just because the FBI decide they want to. What they can do, as determined by a few courts, is not remind the suspect of those rights in situations where the FBI believe they need information for public safety.

No, simply because it is the right thing to do. However, this case is in a gray area because Dzhokhar apparently was unconscious when taken into custody.

"Dzhokhar Tsarnaev will not hear his Miranda rights before the FBI questions him Friday night.".

Unless they're questioning an unconcious person, there is no gray area.

Heh, a good catch. :-)

I was answering the question as to whether he/she should care. If they don't already care, it's clear they have no regard for anyone else but themselves. I was giving them the selfish reason.

Ah, The Right Thing To Do™

I was expecting an invocation of a god or the State™ whims, but an appeal to some kind of morality not mentioned in relation to works just as well.


In this case you could make the argument that it's the right thing to do because it's (I'm assuming) what you would want done to yourself.

Yes, i'd gladly bend over and lubricate my own orifices for sacrifice to the State™ to tort its own laws in the hopes that in the future it will set a precedent for future generations to cope with more of the same :D


Your sarcasm is duly noted, sir.

You know, whatever works. If we agree it's a moral thing to do, the origin of the morality is less important. Philosophy can be debated... in a different thread.

Morality is such a loaded word, which is why I didn't use it. But yes, another day, another thread.

"whatever works."

Well if the State™ has to circumvent it's own laws to achieve some ends (which i doubt are really ends since incidents like this will continue to happen), one could argue that grounds for morality are null and void.

After all, that's what Terrorists™ do.

Just FYI - the little &trade; thing doesn't help your arguments be heard. Just the opposite. See also, people who write "Micro$oft".

I recognize that, but i also recognize that people who are devout in their beliefs have little reason to think otherwise (it is a belief after all), so in the end i do it anyway for my own laughs :P

As long as you remember you still have those rights, it doesn't really matter?

Not everyone knows they have these rights. I remember in high school being told repeatedly that I had no rights as a minor. We never actually learned about our constitutional rights; I had to find those out on my own.

Also, people have a natural tendency toward defending themselves after being accused. Being read your rights is a reminder, in the heat of the moment, that no, you don't have to talk and you have the right not to. And your right to remain silent is important even if you're not guilty (maybe especially!). Dont Talk to Police: http://www.youtube.com/watch?v=6wXkI4t7nuc

Once he resumed consciousness he has a right to remain silent but the "public safety" exemption that the Supreme Court inserted to the Miranda rule in 1984 was changed even further by Obama in 2011 that allows the government to question a suspect for 48-hours. Is that a greased, slippery, slope or what?


[1] Think Progress - http://goo.gl/DPV6L [2] Wall Street Journal - http://goo.gl/fEPnO

Yeah, this article and most comments seem pretty ridiculous.

Yeah, let's just assume he knows all of his rights. Come on! It's on TV all the time and stuff. No reason to even bring them up.

Now where did you buy those pressure cookers, hmm?

Individually, no. But the Miranda process isn't about the individual alone, it's about the whole system of law.

But in this case, certainly they should ensure he doesn't die due to lack of medical attention while they attempt to read him his Miranda rights.

I'm also concerned that the information (such as a confession) he gives may be rendered inadmissible in the future by the Supreme Court if it ever rules that the public safety exception was improperly applied in this interrogation.

It is not only the confession that may be rejected, but everything based on information that he gives about co-conspirators. Imagine that it was not only him and his brother, but that there is a cell of a dozen people getting money from an overseas hub that manages a wider network of AQ cells. He talks without being allowed a lawyer, and the FBI uses the information to roll up another five or six cells and seize the hub's assets in the US. When it gets to appeals court, all of the seizures and arrests can be thrown out as fruit of the poisoned tree because the warrants were based on inadmissable information from an unlawful interrogation.

This is no different than "Signature" killings via UAV, nor is it much different than the Telcoms receiving immunity for their participation in the unconstitutional domestic surveillance program.

It's just another example of how far our nation has fallen in a relatively short period of time.

> This is no different than "Signature" killings via UAV

Completely disagree.

There's a vast difference between assassinations without trial of both US and foreign nationals vs. not reading a suspect their Miranda rights. Note that the rights themselves are not being stripped away, as is obviously the case with the former.

This doesn't mean either practice is noble or desirable, but it's patently ridiculous to draw false hyperbole-laced equivalencies all over the map.

Both set a precedent for violations of Constitutional rights.

What exact constitutional right is violated?

The Miranda rights apply to multiple constitutional amendments (4th and 5th, others indirectly) from the Bill of Rights, and it is also the constitution that states the Supreme Court decision for which they are named is law, and the only binding interpretation for how those amendments are to be applied.

In short, the Supreme Court ruled that not informing suspects of these rights violated the amendments, and the Constitution itself says they have the right to do that.

If anyone thinks the government will need Dzhokar's confession to establish guilt here they are bonkers.

This isn't really a question of a confession as much as it is Holder's DOJ has a long history of expanding the definition of the exemption. If they ask him where he's keeping any bombs, fine, but if they're doing this purely for long-term intelligence reasons above and beyond any clear or present dangers, I'm not sure if I would agree with that usage.

Huh? That'd be exactly how I'd want it to be used. Information on who his brother met with on his last trip to Russia, for example, is fairly useless in prosecuting #2, but as an intelligence lead it could be invaluable.

The exemption is fairly narrowly defined to clear and present dangers to the public. Holder has been attempting to expand the definition for years, while also trying to carve out the 5th amendment protections. It's absolutely not how the law should be applied. They can gather that information without denying the kid his rights.

I said this on reddit a couple hours ago. I don't care if he murdered 100 men, he still deserves the same rights as any of us.

If we don't treat the worst of us the same as the best, what can the rest of us expect?

He has the same rights as any of us. The government chose to slightly jeopardize their prosecution, confession may be inadmissible, in the interest of public safety.

The Bill of Rights does not say "Applies to citizens of USA". He should be properly Miranda-ized. No ifs, ands, or buts.

Dzhokhar Tsarnaev is a US citizen.

Plus, he's a citizen of the USA.

Dzhokhar was in no state to hear his Miranda rights. He was in serious need of medical attention, so the highest priority is his medical attention, not reading an injured person his miranda rights. Also, I'm not sure if he'd even have been able to repsond that he understood.

Exactly, that's the point. I was wondering how to rightly interrogate to a severely wounded person. (sarcasm: You can not talk of course, but, hey! do you want this pretty anaesthetic injection?)

Here is a real risk to end like in Madrid's 11-M, dead terrorists -> no answers -> a lot of problems for all spaniards. The FBI will probably want to secure the game and to avoid this, and to avoid the spreading of rumours for years also. The full recovering of this guy probably is in his priority's list now. And I'm not joking at all. Simply there is no point in let him die; only other terrorists (if they are other terrorists) could gain something with this. It's the old same history since Lee Harvey Oswald.

I went to highschool with this guy at CRLS and after going there you know your miranda rights as well as exactly whats legal and whats not. they make sure of that, and that he'll stand up for them. weather the FBI cares or not is beyond our hands reach at this point

The FBI page on the "public safety exception" is really interesting: http://www.fbi.gov/stats-services/publications/law-enforceme...

Indeed. " The commitment to this rule is so strong that the Supreme Court has recognized only one exception to the Miranda rule"

So, not much of a commitment at all. I am so committed to my wife that I only recognize one exception to my marriage vows: if I get a chance with a really attractive woman, then not only can I do it, but I can charge my wife for the cost of dinner.

I can see the merit in both ironclad protection against self incrimination, and the public safety value of making a scene safe.

I think the proper balance would probably be to allow physical evidence produced under "implied duress" (being in confinement/control and asked without being notified of Miranda rights), but not statements. So, maybe 25% more restrictive than the current legal standard.

The true problem with Mirandizing someone is that anyone who isn't a fucking moron will realize "oh, I shouldn't say anything until I get an attorney". Physical evidence is assumed to not depend upon statements to discover, but it certainly will be discovered faster with a statement. This argument isn't actually 100% valid in some scenes and with some types of evidence.

I don't have as much of a problem with lack of notification of someone of his rights vs. not giving him rights when demanded, too -- interrogating someone without Mirandizing him, in a very limited fashion, is less objectionable than doing the same interrogation under direct threat or execution of death/physical attack, drugs, etc.

Exceptions breed ambiguity.

No turn on red.

This article is ridiculous. It starts with the assertion "Dzhokhar Tsarnaev will not hear his Miranda rights before the FBI questions him Friday night." How do we or the author know this, is he assuming this is common practice, has FBI mentioned that they won't read him Miranda?

Second, I was expecting him to mention a case where the police or FBI didn't read the rights to what turned out to be a non-threat/wrong accusation, etc. At least in all the cases mentioned this is not the case, the person presented a clear and present danger.

From the front page of the new york times: "A federal law enforcement official said he would not be read his Miranda rights, because the authorities would be invoking the public safety exception in order to question him extensively about other potential explosive devices or accomplices and to try to gain intelligence."


At which point, the Courts will say "you dun fucked up Police", and the self-incriminating evidence will be inadmissible to court, and not allowed to be told to the jury.

And the police will win the case _anyway_ because we got so much evidence on this guy they can win the case in their sleep. So it all won't matter in the long run.

Thats the good thing about the courts. The Police don't decide whether or not they're exercising the Public Safety Exception... the courts do.

What I'm more curious about is whether or not he still has those rights even if they weren't read to him. I would assume he does no?

Yes, he does. The Miranda rights are (and were) always present, they only serve the function of ensuring that the citizens under arrest actually realize they have those rights.

No. It may result in statements being inadmissible, but he will continue to be questioned even if he invokes his "rights" or asks for a lawyer.

The author is a her.

For someone from the civilized world, there is a clear way from "innocent" to "convicted": through a conviction.

Only a court can convict someone.

Only a convicted person may be legally punished.

Before a conviction can occur, there must be suspicion, and most probably an arrest. A suspect is still to be treated as innocent.

If you allow suspects to be punished, you allow innocents to be punished. At that point, the rule of law has ended, and your country is not part of the civilized world anymore.

As I understand it, even though they haven't Mirandized him, all that means is if he confesses that confession still won't be admissible. They probably didn't Mirandize him because they don't care 1 bit about getting confession, they want to be sure if there's anyone else out there that is planning attacks they get that info from him. Getting info about whether he's guilty doesn't matter, because he's super fucking guilty.

None of this matters in the present case, because they have ample evidence to convict if he never says another word.

This discussion is all about future cases.

Glenn Greenwald always has lots of interesting points to make on issues like this one.


Strongly recommend the Guardian article as well as the links in there.

Also, as a friend commented -- labelling this as "an act of terrorism" has another effect: making many insurance policies void. Were it a "mass murderer" (as I believe seem to more correct, based on what we know so far of what happened) -- most of those policies would still be valid.

In other news, it's U.S. Attorney Carmen Ortiz who decided not to read our suspected bomber his rights:


Gee, where have I heard her name before?

The reading of Miranda rights doesn't in and of itself confer or trigger any new "rights". It's a reminder of the rights he already has. He could simply choose to not say anything without a lawyer being present and there's nothing law enforcement can do about it. People start talking even after being reminded, because I imagine for the most part, by now, those arrested think it's just a bunch of boilerplate that's part of the booking process - that it's almost a TV trope. Once read their rights, the police don't have to wait around for the arrestee to "lawyer up".

From a notorious disinformation site http://debka.com/article/22914/The-Tsarnaev-brothers-were-do... a plausible explanation of the non-miranda situation. Perhaps someone more knowledgable can comment on how elite is Cambridge Rindge and Latin School http://en.wikipedia.org/wiki/Cambridge_Rindge_and_Latin_Scho...

What I find interesting here is that my emotional visceral reaction was that I hoped that not readying Miranda would end up materially hurting the case against this guy.

I guess that is because at the end of the day the odds of me being substantively impacted from terrorism is actually low. The odds of me being impacted from degradation of constitutional protections, actually quite high and I would argue I experience quite frequently.

I just found my own emotional reaction interesting, and indicative that winning for the terrorists is solely in how we react.

Does this mean that Tsarnev has the right to remain silent and just won't be told about it, or does the public safety exemption mean he can actually be compelled to speak?

I think some tradeoff could also be reasonable: throwing part of the evidences in the name of public safety. You could interrogate someone in an emergency situation and not use the declaration or anything coming from his declaration later in court. And only use material evidence found before. As far as I know, here they already have strong evidence against the guy, now is time for due process and trial.

Boston doesn't need this guy to give an incriminating statement to put him away for the rest of his life. Just the multiple shootouts with police (which produced a lot of evidence and witnesses) would do the trick.

What the feds are really interested in is the intelligence they can gather in regards to terrorist activity. If this is part of something bigger, the feds need to figure it out.

There is time to link to this excellent video by James Duane

Don't talk to the police http://www.youtube.com/watch?v=6wXkI4t7nuc

From what I understand there is no such things as miranda rights. They are miranda reminders about your rights granted by the US Constitution.

The author admits a valid case for eschewing miranda rights within the first paragraph. You can't make an argument for a constitutional right and say 'oh wait but there is an exception. and by the way this one might meet it.'

Other countries get by fine without having a Miranda law at all so I don't see what the big deal is about. To be honest I thought Miranda was only used in movies to make an arrest sound cool.

There is no such thing as Miranda law. It is just a warning/reminder about constitutional rights.

Also any country worth living in has anti self incrimination right.

I am not a lawyer but I think precedents have the force of law, and the "Miranda rights" were established by the Supreme Court's ruling on Miranda vs Arizona: https://en.wikipedia.org/wiki/Miranda_v._Arizona

Any law enforcement is screwing themselves by not advising a suspect about his "Miranda" rights. They are risking blowing up the case and forcing the courts to toss evidence that could be critical to achieve a conviction.

I've heard of this "public safety exception" before:

In 1941 Adolf Hitler ordered a directive intended to suppress members of the resistance. It was called Nacht und Nebel ("Night and Fog"). People suspected of "offenses against the Reich" would disappear without any trace.

Who could be considered suspect? "anyone endangering German security" (die deutsche Sicherheit gefährden).

This is a bullshit comparison.

The public safety exception is a very specific exception. Let's say you're a cop who just caught a guy who has rigged a building with bombs and you ask him where the bombs are and how to disarm them. If he tells you and incriminates himself before being mirandized that's still kosher. That's the public safety exception. Period.

If you ask him "why did you do this", and you haven't mirandized him yet and he confesses right then but recants later, you dun fucked up.

I'm not comparing the Nazi party to our own government. I'm simply giving an example of how easily the term "anyone endangering [country name]'s security" can be abused.

Actually, you're using a slippery slope argument and fueling it with a hitler reference.

Also known as an argumentum ad Hitlerum http://en.wikipedia.org/wiki/Reductio_ad_Hitlerum

There's no way he is ever going to see sunlight again, even if found not guilty.

I think u mean Taco Bell instead of sunlight. It would be impossible to never see sunlight again.

This is an amazing discussion. I love this country


"They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

-Benjamin Franklin

So far as I can tell, no liberty has been given up.

The point of the Miranda warning is to make it crystal-clear that a suspect is aware that he doesn't have to speak to police without a lawyer, and is aware that if he does speak to police, what he says can be used against him. The Miranda warning is not a right; it's literally a warning, meant to save people from their own ignorance of their actual rights.

It also does not mean police can't question someone, just that if they do, and don't observe certain forms, a court may not allow the resulting evidence to be admitted at trial.

In this case, the police are basically going to go ahead with questioning, and let the courts sort out later what's admissible and what's not. Courts have been known to allow non-Mirandized statements obtained in circumstances where some immediate risk made it impractical to give the warning before asking a question.

"I'm so tired of this quote." -rmrfrmrf


It is in times such as these, it is the most important to remind us of this.

A few reasons:

1) In this particular case, the public safety exception to Miranda has been around since 1984 (cue Orwellian conspiracy theories). So, for almost 30 years (longer than my existence), Americans have been "deprived" of this "liberty". Suddenly it becomes an issue in 2013 for armchair devil's advocates in a pretty much open-shut case of domestic terrorism.

Furthermore, the Miranda warning never existed in Ben Franklin's time -- it's a "right" given to us purely via judicial policy. Given that not even Ben Franklin thought that an explicit reading of one's Constitutional rights was worthy of inclusion in the amendments, one could argue that the Miranda warning is a "nonessential liberty," in which case Franklin's quote wouldn't even apply.

2) The same people who spew out this quote give up liberty for safety every day as a convenience. Our purchases, thoughts, questions, conversations, and movements are all monitored on a daily basis. Ironically, the people who frequent HN are actually the ones responsible for not only implementing these monitoring technologies, but also monetizing them--figuring out how to use all of this data collected on you to squeeze extra nickels and dimes out of you. In these cases, we give up liberty for...what, exactly? "Free" products? Certainly not safety. This "it's only wrong if the government does it" BS doesn't fly with me. We ARE the government.

3) The quote itself doesn't explain why those who choose to give up liberty for safety deserve neither--in fact, the only thing going for this quote at all was that Ben Franklin said it. Take away the attribution and you're left with an empty sound bite.

"The quote itself doesn't explain why those who choose to give up liberty for safety deserve neither--in fact, the only thing going for this quote at all was that Ben Franklin said it. Take away the attribution and you're left with an empty sound bite."

Good point. I think of Maslovs hierarchy and decisions rational people take almost every time they are in danger.

The quote doesn't give brilliant insight into a complicated problem. It just states an opinion and ties a bow on it. There are swathes of such quotes, and you can find one to support nearly any viewpoint. Of the swathes, however, this particular quote has been beaten to a veritable pulp through (mis)use. It is second in prevalence only to invocation of Godwin's law in discussions of this topic (incidentally, there's a nice example of that below).

Because it's lazy. Using quotes like that demonstrates absolutely zero understanding of the topic at hand, just that <notable person> said X, and you are attempting to bring their authority to the current situation, despite the fact that he was clearly not talking about the current situation.

Nuanced, it is not.

In other words (if I may): Don't give a gun to someone offering to protect you unless you want to see the wrong end of your own gun.

Keywords: "essential" and "a little temporary".

I would call the 4th amendment fairly essential.

No one is lacking any 4th amendment rights here.

Miranda stems from the 5th amendment.

I was referring mostly to the calls to hold him as an 'enemy combatant'.

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