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So Much for the Public Safety Exception, Part II

I noted yesterday that the vaunted "public safety exception" to Miranda's warning requirements went down the drain when a federal magistrate judge told the surviving Boston bomber, in his hospital room, that he had the right to remain silent.  This was before the interrogation team had finished its questioning, and as he was beginning to provide important information.  He immediately stopped talking, so now we'll never know what else he might have been willing to divulge.

One of our readers has taken me to task for ignoring Fed. R. Crim. P. 5(d)(1).  I explained that the Rule creates a right not to make a statement specifically during the initial appearance, not a general right to silence.

Apparently I am not the only one who was taken aback at how carelessly the interrogation was halted by the magistrate judge (possibly with DOJ's acquiescence, although this is unclear).  Rudy Giuliani, a former Deputy Attorney General, and a man thought to know something about dealing with terror attacks, shares my consternation.  This report carries the story:

Former New York Mayor Rudy Giuliani said it was "ridiculous" that a judge stopped the questioning while the 19-year-old was talking to FBI agents.

And House Intelligence Committee Chairman Mike Rogers called the decision to intervene a "God-awful policy."

Lawmakers are demanding to know why Tsarnaev, who has confessed to being involved in the planting of two bombs near the Boston Marathon finish line, was read his Miranda rights in the middle of his interrogation.

"That's just mind-boggling," Giuliani said in an interview with Fox News' Greta Van Susteren.

"This guy is kind of telling you about how he's coming to New York and do a bombing, a judge walks in and we cut off the questioning?" Giuliani said. "What are we, crazy?"

Great question.  And how much did the higher-up's at DOJ know about this? 


The surviving terrorist was in the private hospital in "serious" condition. He couldn't go anywhere solely because of his physical condition and the fact the doctors had not cleared him for release to the government. He wasn't being detained by the government for purpose of the Gerstein v. Pugh/Riverside v. McLaughlin "probable cause determination within 48 hours" requirement.

Why didn't DOJ wait to file the criminal complaint (and probable cause affidavit) until they received notification from the treating physicians that he was stabilized and could safely be transferred from the private hospital's care to the the custody of the government? At that moment, with the terrorist now in the government's exclusive custody (in a government hospital), the 48 hours would start to run.

Wouldn't that have bought the government a lot more time to interrogate the terrorist, and pushed back the "prompt" arraignment required by Rule 5?

Another thought:

Could law enforcement not have formally "arrested" the terrorist; brought him to the private hospital for treatment; stationed officers outside his room; interrogated him under the public safety exception (to obtain statements that could be used at trial); interrogated him outside of Miranda (to obtain intelligence information that would not be used at trial); "arrested" him once the doctors stated that he was stabilized and could be transferred into the government's custody; and then filed a criminal complaint?

If this could have been done, would it have pushed back any deadlines imposed by Rule 5 and/or the Fourth Amendment (as interpreted in Gerstein & McLaughlin)? Or would this procedure have subjected the law enforcement officers to possible 1983 liability?

I think your comments show a helpful and creative turn of mind; whether either suggestion would have worked legally, I don't know.

But it's a different point I want to stress. We shouldn't have to do this kind of thread-the-needle, fancy-dance thinking. This is the whole problem with arbitrary rules written by the judiciary, and yet more so with trying to apply those rules (the Miranda rules in particular) in a setting for which they were never designed (and which I seriously doubt was even thought of in 1966).

There is law, and then there is legalism. These Jihadists are waging war on us, and the response of a country that cares about protecting itself is to fight to defeat them. That means when we capture one of their warriors after an attack on our homeland in which he has killed our children, we extract information from him by any civilized means.

Our law should accommodate itself to this basic reality of survival. As I was saying in one of my earlier entries, the entire Miranda decision -- wrong as a textual and originalist matter the day it was decided -- needs to be revisited.

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