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The 'Public Safety' Follies

Therefore, in a palpable effort to end any public debate over Tsarnaev’s treatment, and to divert public attention away from what appear to be appalling lapses by the relevant agencies in the months since Tamerlan Tsarnaev got on their radar screen over a year before last week’s terror spree, the administration ran into court.

With a criminal complaint filed, the administration calculated, Dzhokhar Tsarnaev is a criminal defendant – no more need to talk about whether he should be a military detainee. And with the civilian prosecution commenced, the public attention could be shifted from the administration’s investigative lapses to the terrorist’s court proceedings.

But there is always a price to be paid. To start the civilian due process was to guarantee the premature end of the national-security interrogation. And on that score, the administration’s argument that the public safety exception to Miranda is an adequate substitute for the open-ended interrogation permitted under military detention is specious.

The administration would have you believe the public safety exception is a settled doctrine with bright-line rules that permit expansive post-arrest questioning without Miranda warnings or counsel. That is preposterous.

First, like most judge-made law, the public safety exception is construed differently in different judicial circuits. In some, the exception ends – and thus the duty to give Miranda’s advice of rights kicks in – the moment the security threat triggering the exception has been erased. So, for example, even if your arrestee is a terrorist, once you have him in cuffs and are satisfied that he is no threat to the arresting officer – i.e., that he is not armed and there are no weapons in the immediate vicinity – the threat is over and you have to advise him of his rights.

Other courts will give more leeway. They reason that if the person arrested is in a position to cause or command violence, the exception should be extended until he is no longer in a position to do that. So, for example, if there was a legitimate reason to suspect that the Tsarnaevs had planted other bombs around Boston, there might be some license to probe that possibility and conduct pre-Miranda questioning until it was answered. But again, once it is answered, the threat is over and the warnings must be given.

Here, a policy point must be stressed – and one would think you’d know this from the Lawyer Left so you wouldn’t have to hear it from the right-wing nut-job former-prosecutor-type. The point of the public safety exception to Miranda is not to give the police an advantage in building a case against the detainee; it is to address any immediate threat to public safety. Consequently, it is not an avenue for conducting a comprehensive intelligence-seeking interrogation of a suspect. The questioning is supposed to be narrowly tailored to the safety threat that triggers the exception.

The public safety exception is no substitute for an open-ended intelligence investigation for national security purposes: to drill down into what ties the Tsarnaevs may have had to al Qaeda-connected jihadist groups in Dagestan and Chechnya; to determine whether there are any more bombs; to find out if the brothers had access to a broader support network in the U.S.; etc.

That kind of investigation is not possible in the civilian criminal justice system. Once you charge someone, the case and the procedural rights of the terrorist take precedence over the public’s interest in quickly obtaining national-defense information to protect American lives.

In an administration being steered by the Gitmo Bar, that has always been the policy choice. Maybe it will finally dawn on people that putting our security in the hands of lawyers who volunteer their services to our terrorist enemies in wartime was not such a great idea.


An Unbearable Aroma of Self-Righteousness in SWAT Nation