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Defining 'Rights' in a Terror Case

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Former AG Michael Mukasey has this op-ed in the WSJ with the above title.  He notes what could and could not have been done differently in the Marathon Bomber case.  No, we can't try him before a military commission, but the questioning could have gone on considerably longer.

Didn't Dzhokhar Tsarnaev have the same right as Abdulmutallab, and weren't officials legally required to inform him of it? Well, not quite. The right in question is not, strictly speaking, a right to remain silent. Rather, it is derived from the Fifth Amendment, which guarantees that a defendant in a criminal case may not be compelled to be a witness against himself. But if an interrogation is being conducted to gather information, not to build a criminal case, then no right to remain silent exists. Law enforcement already has a surfeit of evidence--including photographs and videos of him at the scene of the bombing. The HIG interrogators weren't trying to help prosecutors construct their case.

Of course, Mr. Tsarnaev could have chosen not to talk to intelligence interrogators, or chosen to lie to them. But that is what he would have been exercising: a choice, not a right.

Wasn't there a requirement that Mr. Tsarnaev be brought without delay before a judge? Again, not quite. The rule in question requires that defendants be taken to court without unnecessary delay--but the rule has been interpreted in one case from the judicial circuit that includes Massachusetts to permit even a hiatus of almost four months between arrest and court appearance when a defendant was in state custody during that period. The circuit court found that so long as the delay wasn't used to obtain a confession, it was not unreasonable.

And what of the right to counsel? Didn't Mr. Tsarnaev have the right to a lawyer, and to have that lawyer present during any questioning? Once more, not quite. Another amendment, the Sixth, guarantees the right to counsel in a criminal case, but it guarantees no more.

If Mr. Tsarnaev was being questioned by the HIG solely to gather intelligence, and no admission of his or lead from information he disclosed was to be used in his criminal case, then he was no more entitled to a lawyer in connection with such questioning unrelated to his criminal case than he was entitled to a lawyer to close a real-estate transaction. The HIG could have easily ensured that none of the fruits of its questioning could be used in the criminal case.

Ideally, such intelligence questioning would have continued for a long period, probably months, so that interrogators could try to substantiate the information they obtained, then double back and ask more questions based on what they found. Intelligence-gathering is an incremental process, at best.

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With all due respect to Mr. Mukasey, I would note the following:

1. It is not crystal clear that the terrorist would not have a constitutional right to remain silent in the face of HIG intelligence questioning that did not involve any compulsion. The Court might have something to say about that issue in Salinas v. Texas. (I agree with Kent's amicus brief that there is no freestanding constitutional right to remain silent unconnected to compulsion. And, in Salinas, the core issue is whether or not Salinas voluntarily became a witness, rendering the SG's "express invocation" argument irrelevant.)

2. If the terrorist chose not to talk to the HIG interrogators, that would have shut them down, at least to the extent that they could not have employed any compulsion without risking a 1983 lawsuit.

3. I don't think the "state custody" exception to Rule 5's no-unnecessary-delay rule would fly, given the fact that the terrorist was in the joint custody of the feds and the state.

I have previously suggested a potentially more effective to get around Rule 5's deadline: Rely on the "medical treatment" exception (recognized in a number of federal courts including, get this, the 9th Cir.). The terrorist was in a private hospital receiving treatment. He was in "serious" condition. He was going nowhere because of his condition. The government should not have arrested him and, thereby, triggered Rule 5's clock. They should have stationed officers outside of his room to ensure that he didn't try and escape. When the private physicians told the government that the terrorist could be released into their custody -- an event that I believe did not occur for several days after his admission to the hospital -- an arrest could have been effectuated. This probably would have bought HIG interrogators more time to conduct intelligence questioning. (I know Bill Otis referred to my suggestion as "threading a needle." But, unfortunately, given the constraints that are in existence, this type of technical legal strategy is sometimes in order.)

4. Mr. Mukasey's final point that the "intelligence questioning would have continued for a long period, probably months," is questionable. Sure, if the terrorist had been declared to be an "enemy combatant" and sent to Gitmo, Mukasey's point is well taken. But, since it was decided that he would be prosecuted in civilian court, I don't see how extended intelligence questioning would be a reality. As noted above, once the doctors cleared the terrorist for transfer into the government's custody an arrest would have to take place. That arrest would trigger Rule 5 and the Fourth Amendment's 48-hour deadline. The Rule 5 deadline (as interpreted in Corley) would require presentment to a magistrate within 6 hours and, in turn, the advisement of rights and appointment of counsel. The attorney would ensure that the terrorist never says another word to HIG interrogators or any other government official, other than to plead not guilty.

5. At some point, someone with knowledge of what transpired behind the scenes will spill the beans. At that point, Mr. Mukasey and I can play Monday Morning Quarterback. Or we may find out that the government officials responsible for the handling of this terrorist did in fact think through everything that Mukasey and I suggest.

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