The FBI’s decision to interrogate the Boston marathon bombing suspect before reading him the Miranda warnings has been extensively criticized by civil libertarians. Meanwhile, on the other side, conservatives like Lindsey Graham (R-SC) went even further in their disagreement, suggesting that Dzhokhar A. Tsarnaev should be interrogated as a “potential enemy combatant.” (Even Graham, however, eventually acknowledged that, as a U.S. citizen, Tsarnaev could not be tried in a military commission and “any time we question him about his guilt or innocence, he’s entitled to his Miranda rights and a lawyer.”)
Obama has already gone further than George W. Bush in blurring the lines between the criminal and military justice systems
In fact, the decision shows that the Obama administration has already gone further than George W. Bush's administration in blurring the lines between the criminal and military justice systems. The logic of the administration’s newly minted emergency exception to the Miranda warnings in terrorism cases would allow FBI agents effectively to suspend the Constitution at the Mexican border, where the distinction between organized crime and terrorism is increasingly hard to discern. In fact, the administration’s attempt to redefine what counts as an imminent threat is precisely the same move as it made in its infamous drone memo, which represented a similar extension of elastic Supreme Court standards. The Obama administration’s decision about the Miranda warnings, in other words, is only the tip of the iceberg, and Boston is the place where civil libertarians’ legitimate fears about the militarization of American criminal justice after 9/11 have come home to roost.
The FBI and the Justice Department’s legal defense of their decision to delay the administration of Miranda warnings for some terror suspects was set out in an October 2010 memo called Custodial Interrogation for Public Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside the United States.” The memo begins by noting that the guidelines apply only to “arrestees who have not been indicted and who are not known to be represented by an attorney,” confirming that the best thing you can do if you’re arrested and want to stop the government from questioning you is to say the magic words: “I want a lawyer.”
The memo stresses that when interrogating suspected terrorists, “agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.” The citation is to New York v. Quarles, the 1984 case which held, as the memo notes, “that if law enforcement officials engage in custodial interrogation of an individual that is ‘reasonable prompted by a concern for the public safety’”—such as asking a fleeing suspect with an empty shoulder holster “Where’s the gun?”—any statements the suspects makes should be admissible in Court even if he made them before receiving the Miranda warnings.
Should the government be able to deny the rights of the criminal justice system to suspected criminals simply by alleging an ideological motive?
But after acknowledging that, according to the Supreme Court, “this [public safety] exception to the Miranda rule is a narrow one,” the Obama administration proceeds dramatically to expand it. “There may be exceptional cases,” the memo notes, “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.” The citation is to plurality opinions of the Supreme Court such as U.S v. Patane, a 2004 opinion by only three justices—Thomas, Scalia, and Rehnquist—holding that “the police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide full Miranda warnings. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence.” In other words, if the unwarned statement is never introduced in a trial, there’s no violation of the suspect’s constitutional rights. In his passionate dissent, Justice David Souter worried that “in closing their eyes to the consequences of giving an evidentiary advantage to those who ignore Miranda,” Thomas, Scalia, and Rehnquist would create incentives for the police deliberately to ignore Miranda. The Obama administration’s memo, and the FBI’s performance in the Boston bombing investigation, vindicates Souter’s fears.
The administration has gone even further than Souter could have imagined. It doesn’t only encourage the police to interrogate suspected terrorists about imminent threats; it adds that “the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.” The memo continues: “Depending on the facts, such interrogation might include, for example, questions about possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks.” This stretches the idea of imminence beyond recognition, all on the theory that the worst thing that can happen after an extensive interrogation without Miranda warnings is that any intelligence the suspect discloses will have to be excluded at his trial. And when the evidence is overwhelming, as it appears to be in the Boston case, this won’t affect the government’s case.
The implications of the administrations’ expansion of the public safety exception to Miranda are especially radical because of the ambiguity of its definition of terrorism. The FBI’s report on Terrorism 2002-2005 notes that “Terrorism is defined in the Code of Federal Regulations as 'the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.'” In Boston, the bombing suspect is clearly alleged to have used violence against civilians; the question about whether he qualifies as a terrorist turns on his motives. Was he alienated and upset because he couldn’t fit in, like the gunman in the Newton, Connecticut school shootings, in which case he should be interrogated as an ordinary criminal? Or was he motivated by his religious beliefs and an effort to carry the war of Independence waged by Chechen Islamacists to American soil? Those are the central questions that investigators still don’t know the answer to—Massachusetts Governor Deval Patrick said on Sunday he had no idea what motivated the suspects and that investigators believe the immediate threat ended when the police captured Dzhokhar Tsarnaev and killed his brother, Tamerlan. But in that case, without having clear evidence of a political motive, why did the FBI interrogate Dzhokhar as a suspected terrorist in the first place? Only because without designating him as a suspected terrorist, the federal government wouldn’t have had jurisdiction. The logic of the government’s terrorism investigation, in other words, is entirely circular: officials are quick to apply the label of terrorism to any mass violence against a civilian population even before having evidence of the political motive that’s necessary to meet the legal definition of terrorism, all in the interest of gathering evidence that will prove the missing motive and justify the expanded interrogation.
The dangers of this expansive definition of terrorism are obvious from the fact that it would be easy to label virtually any drug-related activity on the U.S.-Mexico border as terrorism and then effectively suspend constitutional protections for U.S. citizens who are suspected of participating in drug war. As Dennis Kenney, a professor at John Jay College of Criminal Justice notes, “Boston sets a dangerous precedent, because along the Mexican border, organized crime and terrorism are largely interconnected.” Kenney notes that the old assumption, which held that organized crime had the non-ideological goal of making money while terrorism had the ideological goal of political change, has broken down in the war on drugs. “In small towns in Mexico, you have signs up on the highway telling the police, you can take the money or you can take a bullet,” he says. “The drug lords are openly advertising that the police need to be corrupted and to provide protection in exchange.” As organized crime groups use ideological terror tactics to accomplish their goals, and terrorist groups have crossed into organized crime by figuring out that the best way to fund themselves is to be directly involved in the drug trade, the two activities are harder and harder to tell apart. Under the logic of the Obama administration’s new position, the police can use military or law enforcement tactics on both groups—either seizing their assets under the criminal justice system or interrogating them as terrorist suspects and trying them in military commissions under the military justice system.
This is, in other words, much broader than a debate about whether you have to provide Miranda warnings to suspected terrorists. The real question is whether the government should be able to decide it doesn’t have to extend any of the rights of the criminal justice system to suspected criminals, simply by alleging, without evidence, that they have an ideological motive. Senators like Lindsey Graham who want to designate the Boston bombing suspect as a potential enemy combatant, even as they now acknowledge he can’t be tried in a military commission, are trying to extend the reach of military justice to cover the investigation of a range of potentially ideologically motivated crimes, which could eventually grow to include urban gang violence. This is the Latin American and Eastern European way, not the American one.
What’s especially unfortunate about the Obama administration’s assault on the criminal justice system is that the system worked so impressively in the Boston case. The police did a superb job in identifying the suspects quickly, showing coordination between state, federal, and local officials, and they managed information and the crime scenes well under tremendous stress. Moreover, no one has produced evidence showing that non-mirandized investigations, like enhanced interrogation, are necessary to procure valuable intelligence—the administration originally argued that the ordinary criminal justice system was adequate to try even the Guantanamo detainees. “We should use the rules we currently have, because no one has made a convincingly argument that the rules don’t work,” says Kenney, a policing scholar and former cop. “Collectively, you’ll find that the police are pretty comfortable with the rules as they are and if you talk to police leaders, they’re nervous about these kinds of changes.”
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.