Dzhokhar Tsarnaev and the 'Ticking Bomb' Scenario

The FBI will use the “public safety exception” to the Miranda rule in order to interrogate Dzhokhar Tsarnaev, the surviving Boston bomber, without having to read him his constitutional rights.

From ABC News:

The exception, according to the FBI‘s website, “permits law enforcement to engage in a limited and focused unwarned interrogation and allows the government to introduce the statement as direct evidence.”

“Police officers confronting situations that create a danger to themselves or others may ask questions designed to neutralize the threat without first providing a warning of rights,” according to the FBI.

Anticipating that Tsarnaev may be in a condition to be questioned, expect the activation of the president’s High-Value Detainee Interrogation Group (HIG).

The group, set up in 2009, is made up of agents from the FBI, CIA and the Defense Intelligence Agency. They have been on standby waiting for the moment the suspect was taken in.

According to the FBI, the HIG’s “mission is to gather and apply the nation’s best resources to collect intelligence from key terror suspects in order to prevent terrorist attacks against the United States and its allies.”

We know very little at this point about the conspiracy to bomb the Boston Marathon. Did the brothers act alone or did they have help? Are they part of a larger terrorist cell of Chechens located in the U.S.? And, most importantly, is there another, deadlier attack being planned that puts Americans in imminent danger?

The employment of the public safety exception giving the FBI the ability to question Tsarnaev without reading him his Miranda rights is a pretty good indication that the government is worried that our lack of hard information about the bombers’ background and associates puts the U.S. and its citizens at risk.

The “ticking bomb” scenario has never actually occurred. There has never been a situation where we have had a terrorist in custody who might supply us with information that would head off an imminent attack. Our interrogations of several high-value terrorists have indeed led to the disruption of plots and the arrest of other terrorists. But there has never been an instance where a terrorist in custody has given us information — or even possessed information — that could have led to the dismantling of an active plot that had gone operational.

This doesn’t mean that, at some point in the future, a ticking bomb scenario won’t arise. But it hasn’t yet, and the fact that it was used to justify torture makes its use problematic, at least in some people’s minds.

The scenario has been used to justify torture in the past. But here, it is being used to justify employing the public safety exception to Miranda. Emily Bazelon, writing in Slate, makes some excellent points about the exception, and explains how it has been used previously:

There is one specific circumstance in which it makes sense to hold off on Miranda. It’s exactly what the name of the exception suggests. The police can interrogate a suspect without offering him the benefit of Miranda if he could have information that’s of urgent concern for public safety. That may or may not be the case with Tsarnaev. The problem is that Attorney General Eric Holder has stretched the law beyond that scenario. And that should trouble anyone who worries about the police railroading suspects, which can end in false confessions. No matter how unsympathetic accused terrorists are, the precedents the government sets for them matter outside the easy context of questioning them. When the law gets bent out of shape for Dzhokhar Tsarnaev, it’s easier to bend out of shape of the rest of us.

[…]

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.” For a while, nothing much happened.

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 and interrogated. When the agents stopped questioning Abdulmutallab after 50 minutes and Mirandized him—after getting what they said was valuable information— Abdulmutallab asked for a lawyer and stopped talking. Republicans in Congress denounced the Obama administration for going soft.

Bazelon worries that the public safety exception will be abused by authorities if it is used unjudiciously. This is certainly something that should concern all of us.

But when authorities are confronted with so many unknowns regarding Tsarnaev, the public safety exception is a wise and prudent tool that federal agents can use to try and glean vital information — if the terrorist is in a mood to talk. The younger Tsarnaev is intelligent and apparently thoroughly Americanized. It is possible he knows he doesn’t have to speak to authorities anyway.

So the feds might find themselves back to square one even with the public safety exemption. As an American citizen, Tsarnaev will enter the justice system with some of the best lawyers in the country defending him. He won’t be sent to Guantanamo. He won’t be tortured. He might not even be convicted.

And sometime today, he will be read his Miranda rights and will not be under pressure to share whatever he knows, if anything, about future plots or other conspirators. It is frustrating to realize that in the age of terror, our laws and our Constitution are sometimes incapable of stretching far enough to adequately protect us.