What rights should Dzhokhar Tsarnaev get and why does it matter?

dzhokharShortly before Dzhokhar Tsarnaev, an American citizen, was apprehended last night, GOP Sen. Lindsey Graham advocated on Twitter that the Boston Marathon bombing suspect be denied what most Americans think of as basic rights. “If captured,” Graham wrote, I hope [the] Administration will at least consider holding the Boston suspect as [an] enemy combatant for intelligence gathering purposes.” Arguing that “if the Boston suspect has ties to overseas terror organizations he could be treasure trove of information”, Graham concluded: “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.'”

Once Tsarnaev was arrested, President Obama strongly suggested that he would eventually be tried in court, which presumably means he will at some point have a lawyer (something that Graham, along with John McCain and Liz Cheney, last night opposed). But the Obama DOJ also announced that they intended to question him “extensively” – their word – before reading him his Miranda rights, as Graham advocated in the second and third tweets quoted above. And the DOJ said they intend to question him not just about matters relating to immediate threats to the public safety – are there other bombs set to go off? is there an accomplice on the loose preparing to kill? – but also, again in their words, “to gain critical intelligence”.

Graham’s tweets quickly created a firestorm of outrage among various Democrats, progressives, liberals and the like. They insisted that such actions would be radical and menacing, a serious threat to core Constitutional protections. I certainly shared those sentiments: the general concept that long-standing rights should be eroded in the name of Terrorism is indeed odious, and the specific attempt to abridge core constitutional liberties on US soil under that banner is self-evidently dangerous.

But while I shared the reaction of these Democrats to Graham’s decrees, it nonetheless really baffled me, as I quickly noted. This was true for several reasons.

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First, the Obama administration has already rolled back Miranda rights for terrorism suspects captured on US soil. It did so two years ago with almost no controversy or even notice, including from many of those who so vocally condemned Graham’s Miranda tweets yesterday. In May, 2010, the New York Times’ Charlie Savage – under the headline “Holder Backs a Miranda Limit for Terror Suspects” – reported that “the Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights.” Instead of going to Congress, the Obama DOJ, in March 2011, simply adopted their own rules that vested themselves with this power, as reported back then by Salon’s Justin Elliott (“Obama rolls back Miranda rights”), the Wall Street Journal (“Rights Are Curtailed for Terror Suspects”), the New York Times (“Delayed Miranda Warning Ordered for Terror Suspects”), and myself (“Miranda is Obama’s latest victim”).

In a great analysis last night denouncing the DOJ’s decision to delay reading Tsarnaev his rights, Slate’s Emily Bazelon details exactly what roll-back of Miranda was achieved by Obama. Specifically, the Obama DOJ exploited and radically expanded the very narrow “public safety” exception to Miranda, which was first created in 1984 by the more conservative Supreme Court justices in New York v. Quarles, over the vehement dissent of its liberal members (Brennan, Marshall and Stevens, along with O’Connor). The Quarles court held that where police officers…



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