Did The FBI Violate Dzhokhar Tsarnaev’s Sixth Amendment Rights?

New questions about the interrogation of the surviving Boston Marathon bombing suspect.

bill-of-rights

There has been much controversy over the past week over the fact that Boston Marathon bombing suspect Dzhokar Tsarnaev received his Miranda warnings before the FBI was supposedly finished with questioning him under the “public safety” exception to the rules established by the Supreme Court’s decision in Miranda v. Arizona. I’ve already dealt with the reasons why the objections to Mirandizing Tsarnaev are entirely without merit in a previous post, but this report from The Los Angeles Times raises a far more serious question:

Tsarnaev has not answered any questions since he was given a lawyer and told he has the right to remain silent by Magistrate Judge Marianne B. Bowler on Monday, officials said.

Until that point, Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.

As I discussed previously, the Miranda warning itself is really best understood as more of a rule of evidence than a Constitutional mandate. If law enforcement continues to  question a suspect when he’s in custody without giving him the Miranda warning, or without a signed waiver from the suspect waiving the right granted under Miranda, then they risk the possibility that anything that the suspect tells them will be ruled inadmissible at trial. Things get a little different when we start talking about the right to counsel. It’s black letter law that when a suspect who is being questioned requests counsel, all questioning is supposed to stop. In the days since Dzhokar Tsarnaev was arrested, In the light of the events in this case, I went back and re-read the decision in New York v. Quarles, the case that created the “public safety” exception to Miranda,and I cannot say that I find anything in there that would justify an exception to the 6th Amendment right to counsel. As I’ve stated before, the Quarles case involve a situation where the Defendant was arrested near the scene of the crime and, before reading him Miranda rights, the police, noticing an empty shoulder holster, asked him where the gun was. The Supreme Court ruled, correctly I would submit, that this was an acceptable deviation from the Miranda rules due to the risk to public safety of a handgun lying unattended somewhere on the streets of New York City. That’s clearly not the situation that existed in the FBI’s questioning of Tsarnaev.

There’s actually a more important thing to keep in mind here. The warnings that the Supreme Court’s decision in Miranda v. Arizona requires law enforcement to give to suspects at the point of arrest do not create rights, they are merely meant to inform someone who is in the custody of law enforcement of the rights that they already have under the Constitution. Therefore, the fact that Dzhokar Tsarnaev was not read his Miranda rights before the afternoon of April 22nd is, in some sense, entirely irrelevant. Throughout the period before that time, he was under no obligation to speak to law enforcement, and if he requested counsel, those authorities ought to have been legally obligated to end questioning immediately.

Glenn Greenwald comments:

[I]f the LA Times report is true, then it means that the DOJ did not merely fail to advise him of his right to a lawyer but actively blocked him from exercising that right. This is a US citizen arrested for an alleged crime on US soil: there is no justification whatsoever for denying him his repeatedly exercised right to counsel. And there are ample and obvious dangers in letting the government do this. That’s why Marcy Wheeler was arguing from the start that whether Tsarnaev would be promptly presented to a federal court – as both the Constitution and federal law requires – is more important than whether he is quickly Mirandized. Even worse, if the LA Times report is accurate, it means that the Miranda delay as well as the denial of his right to a lawyer would have continued even longer had the federal magistrate not basically barged into the interrogation to advise him of his rights.

As Greenwald acknowledges, this allegation is serious enough that it perhaps requires more than just the word of an anonymous source. If Tsarnaev really did request counsel and his request was ignored, then that is a serious allegation. Regardless of what Tsarnaev is accused of, he deserves the protections of the Constitution, and law enforcement ought to have respected that.

FILED UNDER: Crime, Law and the Courts, National Security, Terrorism, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Ben says:

    I’ve been close to losing my shit with people about this for two weeks now. I hate that I have to explain it to people. Miranda warnings (and the public safety exception) have ABSOLUTELY NOTHING TO DO WITH the 6th Amendment right to counsel. And if it’s true that the FBI ignored his requests for counsel, then this is an extremely egregious violation of constitutional rights, and the public safety exception doesn’t even come into play.

    This has a lot more to do with the Massiah case than Miranda. Anything they got from him after he asked for counsel will have to be inadmissible (assuming his counsel do their jobs in getting it suppressed). Not sure if they need any of those statements for a conviction, though.

  2. @Ben:

    I get the impression that they don’t really need his statements for a conviction, which may be why they didn’t really give a crap about his rights.

  3. Ben says:

    @Doug Mataconis:

    Even if that’s true, it makes us (and our legal system) look pretty bad, if they just say “the hell with it, we’re just going to ignore all of your constitutional rights” just because they already have an airtight case against you.

  4. @Ben:

    I agree.

    I’m not sure what the remedy would be, though.

  5. Joel Hancock says:

    “Did The FBI Violate Dzhokhar Tsarnaev’s Sixth Amendment Rights?”

    Not here, because the 6th Am. Right to Counsel does not attach until formal proceedings have commenced against a criminal defendant with the filing of an indictment or formal charges.

    The question here is whether they violated his 5th Amendment right to have counsel present during “custodial interrogation.” While the public safety exception under Miranda might absolve the police from failure to warn the suspect of this right, the public safety exception does not apply when the suspect has explicitly invoked his right to have an attorney present during the custodial interrogation. At that point, the interrogation must end and the suspect must be given counsel.

    So no, they did not violate his 6th Amendment right to counsel. They certainly violated his 5th Amendment right to counsel.

  6. Ben says:

    @Joel Hancock:

    I was under the impression (please correct me if I’m wrong) that formal charges were filed over the weekend, at least 24 hours before the special court session held in his hospital room, during which he continued to be questioned. If that’s true, then the 6th amendment was indeed violated, in addition to the 5th.

  7. Joel Hancock says:

    If he had been formally charged, then yes, any subsequent questioning without an attorney present was a violation of his 6th Amendment right to counsel. All questions prior to that would implicate his 5th Amendment right to counsel during custodial interrogation.

  8. Joel Hancock says:

    My understanding is that charges were filed after interrogations had begun and the suspect was writing his responses to investigators. Once charges were filed, both 5th and 6th Amendment rights were triggered and subsequent questioning was made in violation of both. Though, admittedly, it’s not clear when he invoked his right to an attorney, whether before or after charges were filed.

  9. Tyrell says:

    It does seem to be an element of some danger that there are more explosives in places that might be triggered accidentally or even booby traps could be set up in their home or workshop.
    We do not want to burn bridges before we get all the information, and this person could supply a lot in terms of supply lines, communication chains, possible targets, methods, even identities of those at the top. Of course torture is not necessary to get information. There are many more effective methods. I once saw a television recently where a terrorist was tricked into revealing his next target, a shopping mall, through clever uses of time manipulation. The FBI has the necessary skills to do these sorts of things.

  10. Ben says:

    @Tyrell:

    Again, you’re describing the “public safety exception”, which is an exception to the requirement that police must inform the suspect of his rights. But it is NOT an exception to the rights themselves. The right to counsel and the right to remain silent exist independent of Miranda, and if he was questioned after requesting to speak to an attorney, then his rights were violated, and there is no valid exception in that case.

  11. Tyrell says:

    @Ben: This question: does remaining silent include written answers, computer communications, and actions like some sort of reactions to various set up situations that would reveal thoughts and valuable information through actions?
    Maybe I have been watching too many tv programs and movies.

  12. Rafer Janders says:

    If this is true, it illustrates another problem with our system: you can’t get a case that’s any more high-profile and public than this one. If the authorities are willing to flout the right to counsel in a very public case like this, knowing as they must that that information is likely to get out, imagine what they must do all the time in tens of thousands of less public cases.

  13. Mikey says:

    I’m holding out for more detail. The FBI is far from perfect, and sometimes not even ideal, but it’s not staffed by morons. They’d have made sure any procedure involved with a case of this magnitude was cleared at the DoJ level–perhaps even the AG himself.

    I could be wrong, but I think it’s unlikely in this instance.

  14. Mikey says:

    @Rafer Janders: If I’m wrong in my previous comment, and what you say is correct, it would be bad indeed.

  15. steve says:

    Does this apply to all questions? If they ask about stuff not pertinent to prosecution can they not comply with request for counsel?

    Steve

  16. William says:

    @Rafer Janders: Careful now! You might just throw the whole mechanism. 🙂 Truth is, our justice system is in about as bad a shape as any justice system in the world….and nobody REALLY wants to go there.

  17. William says:

    @bill: The argument you make is weak. He was a naturalized American citizen. He has not been hearing this “right to be silent” thing from his earliest days. And, in truth, MOST people these days really don’t understand the fact that they have no duty whatsoever to speak to law enforcement officers about anything. That’s largely because law enforcement doesn’t want people to believe that. Law enforcement enjoys the privilege of being perceived as some sort of religious class of inquisitioners. A citizen doesn’t even have the right to LIE to police anymore…and that gives the lie to the whole business of remaining silent. I believe that the Framers would agree that a citizen has a right to remain silent or, if he should choose, lie his ever loving ass off!

  18. William says:

    Whatever was extracted from this “terrorist” AFTER he asked for a lawyer should be inadmissible in a court of law. That’s the plain requirement of SCOTUS rulings on the matter. The FBI can continue to be a bunch of keystone idiots so long as they want….but, the Constitution will continue to thumb is beautiful nose at the faces of G-men who are too stupid to read current case law.

  19. @Joel Hancock:

    No, you’re wrong.

    The moment a suspect in custody asks for an attorney questioning is supposed to stop. That’s black letter law.

  20. JKB says:

    Well, being the law, logic doesn’t apply. He may not have asked for a lawyer in an approved manner. I’ve read decisions where saying such things as “Should I have a lawyer?”, “Maybe I should get a lawyer?” were not considered proper invocation. The interrogators would know the magic words and those combinations that SCOTUS and lower courts have decided aren’t magic. The one thing to keep in mind is invocation of your rights doesn’t work in practice like 99% of the population, including non-criminal attorneys, think.

    Then there is the devil that the failure to give the warning or questioning after invocation of right to counsel only impacts the use of the information against the suspect, not others. Some of the reported information he gave indicates the questioning went beyond imminent public safety so could be deemed outside the “public safety exception” anyway. But perhaps the criminal investigators aren’t privy to the interrogation results but the intel community is using it. Perhaps not what we want in a “free” society but not really a remedy at this point, that is if they want to do an intel interrogation but not use it for the criminal case.

  21. William says:

    @JKB: Your points are all quite valid, JKB. Nothing you’ve stated is in error with regard to present law concerning the 6th Amendment right. There are “certain” phrases that convey an accused’s right. It has to be clear and demonstrative. And, as you have stated, any information collected about people other than the accused is fair game.

  22. Stonetools says:

    Agree with what Doug and Hancock said. Also agree that the government was probably more focused on getting information about any bombs out there than anything else. I think a executive Decision was made to focus on recovering intelligence, regardless of effect on the criminal case.
    In theory, I would have preferred that the Administration respect the supect’s Constiutional rights , but in practice, I may have made the same call.
    Now I Expect the court to do it’s duty and exclude the defendant statements from the criminal case as well as any evidence recovered as a result of such statements should the Government proffer such statements and evidence in trial ( I expect the government not to even proffer such evidence , actually). In that way, the government gets a clean conviction and the defendant gets his constitutional rights. Justice, of a sort, will have been done.

  23. William says:

    @Stonetools: A calculated decision with a solid foundation, no doubt. But, what does it say about the Bill of Rights if calculated decisions can suspend its attachment? And what particular sorts of cases are game for this same kind of “practical” approach? What IS the Rule of law?? The Constitution? Or the practical decisions of a group of government employees? I certainly have little confidence in the latter.

  24. Pat says:

    @JKB: Please….he couldn’t even talk at the time. I am sure that was by design by the way. And he probably knew he needed a lawyer–he isn’t stupid..

  25. JKB says:

    @Pat:

    The point is, the invocation has to follow a certain form. That is rulings from the courts. The person invoking has to be clear and demonstrative as William said. And they have to stick to their guns, wavering may result in a waiver. And the cops will know what the courts will reject and what they won’t.

    In any case, when invoking your rights, it is important to realize the police may or may not honor your rights, by ignorance or malfeasance. But by invoking clearly and demonstratively, you are giving your eventual lawyer a good basis to defend you.

    Of course, the first thing to know is you have a right to remain silent. Everybody does. Unfortunately, most people don’t have the ability to remain silent. And there are techniques the interrogators use that do not constitute questioning but still cause many to offer comment, which can and will be used against them.

  26. Tyrell says:

    There is plenty of evidence to convict this guy in a matter of hours. What the concern is now is to get as much information as possible, otherwise there will be the chance of more bombings. They need to be encouraging this guy to talk.

  27. Mikey says:

    Former AG Mukasey was on my local talk station this morning and asserted there’s a difference between questioning for intel purposes and questioning related to a criminal prosecution, and therefore there’s no Constitutional requirement a lawyer be present for the former as there is for the latter.

    I don’t know if that opinion has carried forward to the current administration, but if it has, it might explain why things went as they did with Tsarnaev.

  28. stonetools says:

    @William:

    Or the practical decisions of a group of government employees? I certainly have little confidence in the latter.

    We call that representative democracy, mate. Its the best system of government we have. It ain’t perfect, but nothing is.
    Its worth it to take a step back and reconsider Tsareav. This is a murderer who killed several innocent people, and planned to kill even more. In another time and place, he would be already hanging from a gibbet, food for crows. What he will get is a jury trial, appointed counsel, and an appeals process. That’s progress.
    If you are looking for perfect justice, you’re in the wrong universe. What Tsareav will get is a good attempt at justice, which is better than he deserves, really.

  29. Ben says:

    @stonetools:

    Obviously “perfect justice” is impossible, because that would require omniscience on the part of the fact finder. However, A “good attempt at justice” would mean that his constitutional rights are respected, scrupulously, and then our adversarial judicial process proceeds according to our freaking laws. Which is exactly what he, and every other American citizen, deserves. To think otherwise should be considered abhorrent in our society. If you really think that the rights that a citizen is “deserving” of is in any way altered by the horrific nature of the crime he’s accused of, then that really disturbs me.

  30. Rafer Janders says:

    @stonetools:

    Its worth it to take a step back and reconsider Tsareav. This is a murderer who killed several innocent people, and planned to kill even more.

    So what? Who he is, and the nature of any crimes he may or may not have committed, have nothing to do with the constitutional protections that he, and any other person arrested and questioned by the police in America, might enjoy.

    If we’re going to start saying well, for this guy, we’re going to protect his rights a little less, then we’re soon going to see rights disappear for everyone.

  31. grumpy realist says:

    Well, we may be all jumping the gun here. It’s quite possible what we’re getting is the end result of a long game of Telephone, filtered through a whole bunch of non-lawyers. At present, the whole story relies on the supposed word of an unnamed “senior congressional aide” who I doubt was a) present at the questioning, or b) is a lawyer.

    It’s quite likely that this will end up being one of those annoying cases where the court will have to thrash out the difference between questioning for intel purposes and questioning for evidence for criminal charges, but wasn’t there a recent case which indicated that requesting a lawyer during the intel questioning period did not necessarily have to be immediately granted? (In other words, if you ask for a lawyer, but then don’t shut up immediately afterwards and continue answering questions, whatever you say has been considered to be freely volunteered. Nor has your right to counsel been abrogated.)

  32. JKB says:

    @grumpy realist: through a whole bunch of non-lawyers.

    I’d go the other way and believe the “senior congressional aide” was a “lawyer” in the sense of being an Ivy league law school graduate and having passed a bar in some state. I would doubt they have any practical experience or understanding of how criminal law is actually practiced on law enforcement’s side. I’ve read more than one practicing lawyer, especially criminal attorneys, who point out, law school provides graduates with little training in the actual practice of law. Lots of theory and conjecture but little where the sap meets the skull. Or actually providing useful service to clients. That supposedly comes while slaving away as an associate.

    Well, he was “interrogated” by the best interrogators we’ve got. And good interrogators seldom question a suspect as a question sparks adversity. They talk, a lot. They tell their theory of events, they speculate. All the while, the suspect has to contain the natural desire to correct the record and also the natural inclination to not “antagonize” those holding them by being “uncooperative”. And once they’ve got you trying to appear cooperative by responding, you’ve lost as they are very good at approaching what they want or need sideways and keeping the suspect off balance.

  33. Scot says:

    Shouldn’t there be some kind of consequence for an attorney who approves the deliberate violation of a persons constitutional rights just because the the accused will still go to jail and/or be executed? Hypothetically.

  34. Ken says:

    @Scot: Shouldn’t there be some kind of consequence for an attorney who approves the deliberate violation of a persons constitutional rights

    I dunno – why don’t we ask Alberto Gonzales?

  35. Tyrell says:

    Here is what I do not understand. Why is it the police can not require a person to answer a question , but a judge can? “Answer the question!!” Maybe some one can answer that. It seems like a double standard to me.

  36. stonetools says:

    @Rafer Janders:

    I agree that we should protect his constutional rights and that the government should face legal sanction if it turns out they violated his constiutional rights. But I’m not going to burst out in tears if it turns out that the FBI made a tactical decision to continue questioning the suspect even at the risk of sacrificing the criminal case if it had a well founded fear that there were further suspects and bombs out there. And if it turns out that Tsareav somehow gets off because of evidence the court excludes as a result of violation of the suspect’s Sixth Amandment rights, that’s OK too. Rule of law, and all that.

  37. stonetools says:

    @Tyrell:

    Because that’s under the judge’s power to hold a defendant in contempt. Even then, the judge’s contempt power doesn’t trump the defendant’s right to remain silent under the Fith Amendment, i.e. the defendant can still “take the Fifth ” if the judge questions him.

  38. Scot says:

    @Ken: Gonzales was forced to resign, he should have been prosecuted. IMO. I take it that since Gonzolazes successfully politicized the AG office you think it should continue and that laws don’t apply after one person gets away with it.

  39. Tyrell says:

    @stonetools: Thanks for your explanation. That clears things up.

  40. Ken says:

    @Scot:

    That’s quite a heaping plate of assumptions you’ve got there. The fact that you’ve managed to presume to know a single damned thing about my moral philosophy or political beliefs based on a single eight word snarky answer to a question tells me that you are not an opponent to be taken lightly. or perhaps not to be taken seriously.

    Save your efforts at putting words in other peoples mouths for someone else

  41. JKB says:

    Interesting take on the Miranda warning issue from David Hardy,

    The Supreme Court has held that a Miranda violation occurs only when resulting testimony is sought to be admitted at trial, not when the questioning occurs. So there was no ongoing violation to be halted, even if a judge had that power. And answers secured without the defendant being Mirandized are still admissible for some purposes, i.e., contradicting his claims at trial (you can’t use the statements to prove he is guilty, only to show he’s lying when he claims to be innocent. Go figure).