There’s Nothing Wrong With The Fact That Tsarnaev Was Mirandized On Monday

Some on the right are complaining that Dzhokar Tsarnaev was read his Mranda rights too soon.

law-gavel-lights

As I noted on Monday, Dzhokar Tsarnaev was informed of his Miranda rights on Monday afternoon when a hearing was held at his hospital bedside in front of a  U.S. Magistrate Judge in what was the initial hearing in the criminal case that has been filed against him in Federal Court. At this point, it had been more than 48 hours since Tsarnaev had been located hiding inside of a boat behind a Watertown home and placed under arrest. Over the intervening days, Tsarnaev was questioned several times by the FBI’s “high profile interrogation team,” and the results of that questioning have slowly leaked out over the intervening days. Today,though, we learned that Tsarnaev apparently stopped talking after being advised of his Miranda rights, and that’s leading some Republicans to assert that not enough time was given to the FBI to ask questions about the plot:

The FBI filed a federal criminal complaint against the 19-year-old on Sunday, and federal District Court Judge Marianne Bowler arrived at the hospital where he is being treated to preside over his initial hearing Monday, when she read him his Miranda rights.

[FBI officials told The Associated Press Wednesday that Tsarnaev acknowledged to investigators his role in the attacks before he was advised of his constitutional rights. He reportedly said he was only recently recruited by his brother to be part of the attack.]

But Fox News’ sources say there was confusion about Bowler’s timing, with some voicing concerns that investigators were not given enough time to question Dzhokhar under the “public safety exception” invoked by the Justice Department.

Two officials with knowledge of the FBI briefing on Capitol Hill said the FBI was against stopping the investigators’ questioning and was stunned that the judge, Justice Department prosecutors and public defenders showed up, feeling valuable intelligence may have been sacrificed as a result.

The FBI had been questioning Tsarnaev for 16 hours before the judge called a start to the court proceeding, officials familiar with the Capitol Hill briefing told Fox News. Moreover, the FBI informed lawmakers that the suspect had been providing valuable intelligence, but stopped talking once the magistrate judge read him his rights.

It turns out that the decision to read Tsarneav his rights is one that the Magistrate Judge made herself:

A federal judge made the call to advise the Boston bombing suspect of his Miranda rights, even though investigators apparently still wanted to question him further under a public-safety exception.

The move came as authorities in New York said Thursday that the two suspects had “spontaneously” decided to travel to Manhattan last week to detonate the remainder of their explosives in Times Square. Mayor Michael Bloomberg said the information came from authorities in Boston who had been questioning the suspect, Dzhokhar Tsarnaev.

The judge’s action, which was made Monday, prompted lawmakers to press the Justice Department as to why it didn’t make a stronger bid to resist the judge’s plans.

A Justice Department official said no one at the department asked Magistrate Judge Marianne Bowler to come to the hospital, where 19-year-old Mr. Tsarnaev was recovering, and that she made the determination on her own, following standard court-room practice. Federal rules of criminal procedure require that defendants appear before a judge without unnecessary delay—usually defined as within one business day.

Judge Bowler convened a brief, makeshift court hearing in the hospital room about 16 hours after a sealed criminal complaint was filed in her court against Mr. Tsarnaev. Her reading of the Miranda warning came as part of the formal presentation of charges to the suspect, an act that would have in normal circumstances taken place in a courtroom.

House Intelligence Committee Chairman Mike Rogers criticized the decision to Mirandize Tsarnaev so quickly, saying that the FBI should have been given more time to question him about the plot:

House Intelligence Committee Chair Mike Rogers suggested that Boston Marathon bombing suspect Dzhokhar Tsarnaev received his Miranda rights too soon. Rogers, a Michigan Republican and former FBI agent, complained that a federal magistrate had possibly stopped the FBI from gaining valuable intelligence by stepping in to advise the suspect of his legal rights.

“We can’t have, in a case like this, the judiciary deciding because it’s on TV, and it might look bad for them, to allow the public safety exemption, which is deemed legal by the US supreme court, that they were somehow going to intercede in this,” he said on Andrea Mitchell ReportsThursday.

Rogers called the judicial intervention “confusing, horrible, god awful policy” and “dangerous to the greater community.”

What Rogers forgets here, is that the Federal Rules of Criminal Procedure essentially made what happened here inevitable. Everything that happened to Tsarnaev is governed by Federal Rule of Criminal Procedure 5. Under that Rule, the FBI was required to file a Criminal Complaint “promptly,” which in this case meant Saturday. Once the Criminal Complaint is filed, Rule 5(1)(A) requires that the defendant be brought before a Magistrate Judge “without unnecessary delay.” As noted above, that generally means that the defendant must have his or her initial appearance within one business day, without obvious extensions being given if a Defendant is medically unable to understand the proceedings themselves. The exceptions that apply to this rule only apply in situations where the Defendant is being handed over the state or local authorities, if the government has already dismissed the complaint, or if the arrest is for a probation violation or for a failure to appear before a Federal Court in another District. Obviously, none of those exceptions apply in this case, so once Tsarnaev was placed under arrest a process was placed in motion that made Monday’s court hearing largely inevitable. Finally, it is common practice at the initial appearance for the Magistrate Judge to inform the Defendant of their right to remain silent and their right to counsel. In other words, there was nothing unusual about what happened in this case, and it strikes me that any efforts by the government to delay the process from going forward would have jeopardized the case and would have potentially violated Tsarnaev’s rights under the Constitution.

Another thing worth nothing is the fact that it’s likely that it wasn’t just Tsarnaev being advised of his rights that has led to his silence.  At the hearing on Monday, he was introduced to the attorneys from the Office of the Federal Public Defender who have been appointed to represent his interests in this matter, and it appears from the transcript of the hearing that they had at least some opportunity to talk to each other. One of the first pieces of advice the attorneys would have given him would have been to not answer questions from law enforcement without an attorney present. So, in some sense, placing all the blame on the Magistrate Judge for reading the Miranda warning completely misses the point. From the moment that the Criminal Complaint was filed on Saturday, a process was set in motion that requires certain rules to be followed. Among those rules are the fact that a Defendant must be informed of his rights and must be represented by counsel unless he makes a knowing and explicit waiver of his right to counsel. The FBI had two days to question him under the “public safety” exception. It strikes me that this was more than enough time for them to get the information they may have needed. Now, it’s time for the courts to do what they were created to do.

FILED UNDER: Crime, Law and the Courts, Terrorism
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. grumpy realist says:

    Bravo, Doug. The stupidity of our politicians about due process and legal rights just astounds me.

  2. george says:

    The part I really don’t get is how the self-proclaimed party of small government, of not trusting the government to do even basic things like providing universal health care, can simultaneously believe that the government should have huge rights over an accused individual – in this case withholding Miranda, in other cases holding people for years without charges in Guantanamo, in having a death penalty (isn’t the right to take a citizen’s life the single biggest power of government, much bigger than the right to provide health care).

    The Republicans are, for the most part, all for big government – both in powers (especially police powers) and in spending (military for example). So are the Democrats, but at least they’re honest about it.

  3. Moosebreath says:

    “What Rogers forgets here, is that the Federal Rules of Criminal Procedure essentially made what happened here inevitable.”

    And that’s why Republicans wanted him treated as an enemy combatant — none of these pesky little rules that could get in the way of a conviction.

  4. ernieyeball says:

    “…Rogers called the judicial intervention “confusing, horrible, god awful policy” and “dangerous to the greater community.”

    If this dimwit is searching for danger to the greater community all he has to do is look in the mirror.

  5. Lib Cap says:

    1) is the constitution valid?

    2) does the consitution guarantee rights of Americans?

    3) is our bomber an American?

    Q.E.D

    Miranda is applicable.

  6. Rafer Janders says:

    You know, maybe if we started calling them “Fifth Amendment rights” rather than Miranda rights, then the so-called Constitution-worshipping conservatives would respect them.

    But then again, of course they wouldn’t.

  7. Rafer Janders says:

    I can’t get over the fact that conservatives seem to believe the Miranda warning is some kind of magical incantation or spell that provides rights by virtue of the fact of its being chanted, and that if you don’t tell a criminal suspect that he has Miranda rights, then he doesn’t have any. It’s completely backwards.

    The fact is, people have Miranda rights at all times, whether or not government agents give the warning or not. What the Miranda warning does is essentially allow THE GOVERNMENT to introduce post-Miranda testimony at trial.

  8. Rafer Janders says:

    @Lib Cap:

    2) does the consitution guarantee rights of Americans?

    The Constitution doesn’t just guarantee rights of Americans — in many case, it guarantees the rights of all persons, citizen or not, so long as they are within America.

  9. @Lib Cap:

    Actually, the protections granted in criminal cases apply regardless of whether or not the defendant is a citizen, and even if they are in the country illegally.

  10. stonetools says:

    Doug gets this exactly right. Shame on those Republicans who wanted to deny Tsarnaev his Fifth and Sixth Amendment rights (commonly called his Miranda rights).
    And for what? Its pretty clear that inrerrogation by the FBI under the public safety exception shows that this “terrorist” bombing was a one-off done by a pair of bumbling, confused losers. Certainly Tsarnaev represents no further threat to the public. Enough right wing paranoia wanking already. Let’s just get on with standard court process, which is all that’s needed right now.

  11. PD Shaw says:

    @Rafer Janders: I’ve come to the conclusion that calling them Miranda rights is confusing, and will use the phrase “Miranda warnings” in the future, for the reason you indicate, though I think the warnings also serve the Sixth Amendment right to counsel.

  12. Woody says:

    Mr Mataconis is writing in his area of expertise – i.e. the law; while the Republicans (and their media organ Fox) are broacasting in their area of expertise – agitprop for the faithful.

  13. The right has no credibility on this issue.

  14. Rafer Janders says:

    @PD Shaw:

    You are perfectly correct, I should have said “Fifth and Sixth Amendment rights.”

  15. matt bernius says:

    Bravo Doug. This is an excellent article and wonderfully clear analysis for those of us who don’t live-and-breath legalese.

    And a great discussion of a number of pertinent surrounding issues — in particular @Rafer Jander’s points here and here and @PD Shaw’s suggestion about “Miranda warnings.”

  16. Septimius says:

    The public safety exemption was invoked by Eric Holder’s Justice Department and Tsarnaev was being questioned by Eric Holder’s FBI, who presumably wanted to question him further. Yes, damn those Republicans who wanted to trample on Mr. Tsarnaev’s constitutional rights.

  17. anjin-san says:

    We need to keep in mind that the damage we inflicted on ourselves after 9.11 was exactly what Bin Laden was hoping for.

  18. JKB says:

    Rogers, a Michigan Republican and former FBI agent,

    I see everyone is all about blaming Republicans, and those like Rogers do deserve it. But let’s be honest, the problem is bipartisan. And what exactly are they teaching the FBI that Rogers would be this ignorant of the law and criminal procedure?

    Once the administration rushed to indict, they put in motion procedures. They can’t then call a halt. Not to mention, the public safety exception implies some threat to public safety. Thoughts about maybe going to Times Square with a bomb sometime in the future, isn’t public safety.

    The administration could have easily designated him an enemy combatant for a few days while he was interrogated by national security types,. Then moved to charge him criminally with the intel gleaned firewalled from the criminal investigators and prosectors. It is not like the guy was going anywhere, being technically not under arrest while in the hospital but under 24/7 FBI surveillance and wiretapped wasn’t going to change much.

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  20. fred says:

    Let the law run its course. I believe in the American Legal System.

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  22. Burt Likko says:

    @Doug Mataconis: That is because the Constitution’s articulation of individual rights is simultaneously an articulation of limits on the powers of government. Conceptually, these two concepts are the converse of one another.

  23. Cayce says:

    @grumpy realist: @grumpy realist: Miranda warnings are not guaranteed in the constitution. Miranda requires police to inform the suspect upon arrest that anything he says can be used against him in court, and that the has the right to an attorney. Magistrate Bowler’s job is to arraign the defendant after he is charged and to inform him that he has the right to a jury trial, the right to counsel, the right to remain silent, the right to call his own witnesses and to cross-examine witnesses for the state, etc. Because Bowler isn’t a law enforcement officer – meaning she doesn’t have arrest powers – she doesn’t have the authority to Mirandize anyone. Bowler interfered with a criminal investigation and should be disciplined. @Lib Cap:

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