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Mirandizing Dzhokhar Tsarnaev: Curiouser and Curiouser

Mike Rogers, Chairman of the House Intelligence Committee, has some questions for Eric Holder about how it came to pass that a Magistrate Judge, with an Assistant US Attorney in tow (or was it the other way around?) manages to show up in Dzhokhar Tsarnaev's hospital room to make sure he lawyers up, and thus clams up, in the middle of what had been a productive FBI interrogation about Dzhokhar's imminent terrorist plans  --  plans that we now know included a trip to Times Square to continue the fun.

Chairman Rogers' letter reads, in part:

I would like more information as to who determined that the proceedings [in a hospital involving the magistrate judge who Mirandized Rogers] would occur at that time and place while [FBI] questioning was still ongoing. I have received information suggesting that the Magistrate Judge may have appeared sua sponte to conduct the proceeding in a way that may have not been fully coordinated with the intelligence needs of the FBI. My understanding is that the normal practice places the duty to take the defendant to court (and accordingly discretion as to timing consistent with the rules) on law enforcement, and not the court.

Accordingly, I am requesting a specific and detailed explanation of the facts and circumstances of the nature and timing of this initial appearance. Specifically, I would like to know whether the magistrate or the government first raised the timing of the appearance, how and by whom the timing and conduct of the appearance were determined, and whether the Department of Justice or Federal Bureau of Investigation expressed any concerns about either the timing of the appearance and/or potential administration of Miranda rights to the defendant in the case.

I would also appreciate knowing when the prosecutors and public defenders appearing at the proceeding were informed of it, and whether they raised any concerns with respect to the proceeding. Finally, I would appreciate knowing whether other elements of the Intelligence Community or the Adminstration were consulted with respect to the potential impact this proceeding might have on intelligence collection.

Paul Mirengoff at Powerline brings home the point:

For what it's worth, my guess is that the FBI raised major concerns about Mirandizing the suspect while it was still interrogating him. I'm also guessing that the magistrate's appearance was not "sua sponte." Rather, in all likelihood, government lawyers caused it.

Did they cause it by deciding to charge Tsarnaev? That, I think, would be sufficient, and necessary, cause for a judge of some sort to advise the defendant of his rights (normally this would occur in a court room, but here the defendant was injured and couldn't appear in court).

But why would government lawyers charge Tsarnaev while he was still in the hospital being questioned by the FBI -- surely, they knew that doing so would lead to the Miranda warning? Probably because they (and here I mean top lawyers at DOJ) figured, for ideological reasons, that 16 hours of questioning were enough -- never mind what the FBI thought -- and that it was time to read this terrorist his rights.

For Department of Justice, then, protecting Tsarnaev appears to have trumped protecting the public.

I'm just speculating, though. Let's wait, but not breathlessly, to see what Eric Holder says.

I should add things here.  First, as I've noted before, the warnings a Magistrate Judge is required to give at a Rule 5 (i.e., initial appearance) hearing do not, under the text of that Rule, in haec verba include telling the defendant he has a general right to remain silent.  They advise him that, at his appearance, he has the right to an attorney and to make no statement.  Still, once an attorney shows up, he or she is almost certain to tell the client to zip it.  Thus, for most practical purposes, the Rule 5 hearing is going to be the end of the defendant's willingness to talk to the authorities, or at least to talk without some kind of deal.

Second, it might not be entirely a product of ideology that Main Justice would be worried that 16 hours was getting close to the limit of the Quarles exception for emergency questioning.  In Quarles itself, the questioning lasted for 30 seconds at most, and probably more like 10 seconds.  I am not aware of a case in which any federal court has held that unMirandized questioning under the Quarles exception can last anywhere close to 16 hours.  The central rationale' of Quarles, applied to the circumstances of a terrorist threat that did not exist when it was decided, should allow questioning for at least 16 hours, if not a great deal longer.  But that has not been tested.  A prudent prosecutor would thus want to proceed with caution, and would very likely be getting antsy.

Third, that latter fact is no excuse for what happened.  The whole problem here is that the Administration, and Eric Holder in particular, insists on treating Jihad as the next case to be prosecuted, instead of the warfare it is.  It's admittedly unpleasant to think of the homeland as the battlefield.  But adult life features any number of unpleasant things.  This was not our choice, and to ignore this reality is to invite the fate ignorance in the face of mortal danger typically invites.

We might skate by this time.  My intuition is that the Tsarnaev brothers were their own cell.  But the safety of our citizens should hardly rest on my intuition.  Still less should it rest on this Administration's willful, obdurate blindness about the nature of the threat before us.

Whether or not we can successfully prosecute Tsarnaev for his grotesque murders is very important.  It is not as important, however, as understanding the enemy we face in a way that enables us to defeat it.


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