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The FBI has invoked one of the exceptions to the Miranda rules for Dzhokhar Tsarnaev, the surviving Boston Bomber suspect. Under the “public safety exception," he can be interrogated without being read his rights because there's the possibility that he has information that could affect public safety. There's some sense to this, but I have to admit that I'm still bothered by this.
The Obama administration's Department of Justice has ripped serious holes in Miranda, and to me, that's troubling. Back in 2011, the New York Times published a unsigned memo from the Department of Justice to the FBI regarding this exception, The second bullet point in the memo is this:
"After all applicable public safety questions have been exhausted, agents should advise the arrestee of his Miranda rights and seek a waiver of those rights before any further interrogation occurs…" Excellent. That places some severe limitations on the exception…. except that the sentence goes on with this: "… absent exceptional circumstances described below."
The memo then goes on to say: "There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation." (all italics mine)
The memo doesn't define what such an exceptional case might be that is "not related to any threat." Who gets to conclude that the interrogation should continue without reading the suspect his or her rights? The FBI agents have that discretion. In other words, if the FBI agent thinks that there's a chance, any chance at all, of gaining "valuable and timely intelligence," then they can just forego Mirandizing the suspect for as long as they wish. Worse, in the Department of Justice's mind, there are no checks and balances to go with this. No one has to consult with the courts or check with lawyers or a judge or anyone. The FBI gets to make that determination all on their own.
Look, if there's one thing that life has taught me, it's that when someone in authority gets to decide, all by their lonesome, what they're permitted to do or not do, that power will inevitably be bent to the level of abuse. Perhaps not at first, because the intentions are good -- but down the line, someone will take that lack of oversight and that lack of checks, and seriously abuse that power. That's never good for us: as citizens, as people, as a county that at least pays lips service to the idea of a citizen's rights and fairness.
I'm not saying that's happening now, in this case. I'm saying that once you've torn holes in our protections, you no longer know what one day is going to come marching through those holes, and that's what scares me.
The Obama administration's Department of Justice has ripped serious holes in Miranda, and to me, that's troubling. Back in 2011, the New York Times published a unsigned memo from the Department of Justice to the FBI regarding this exception, The second bullet point in the memo is this:
"After all applicable public safety questions have been exhausted, agents should advise the arrestee of his Miranda rights and seek a waiver of those rights before any further interrogation occurs…" Excellent. That places some severe limitations on the exception…. except that the sentence goes on with this: "… absent exceptional circumstances described below."
The memo then goes on to say: "There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation." (all italics mine)
The memo doesn't define what such an exceptional case might be that is "not related to any threat." Who gets to conclude that the interrogation should continue without reading the suspect his or her rights? The FBI agents have that discretion. In other words, if the FBI agent thinks that there's a chance, any chance at all, of gaining "valuable and timely intelligence," then they can just forego Mirandizing the suspect for as long as they wish. Worse, in the Department of Justice's mind, there are no checks and balances to go with this. No one has to consult with the courts or check with lawyers or a judge or anyone. The FBI gets to make that determination all on their own.
Look, if there's one thing that life has taught me, it's that when someone in authority gets to decide, all by their lonesome, what they're permitted to do or not do, that power will inevitably be bent to the level of abuse. Perhaps not at first, because the intentions are good -- but down the line, someone will take that lack of oversight and that lack of checks, and seriously abuse that power. That's never good for us: as citizens, as people, as a county that at least pays lips service to the idea of a citizen's rights and fairness.
I'm not saying that's happening now, in this case. I'm saying that once you've torn holes in our protections, you no longer know what one day is going to come marching through those holes, and that's what scares me.
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From:
no subject
And of course you always have the right to remain silent and consult w a lawyer, whether they've said so or not.