Recently in Terrorism Category

The DC Circuit today issued a per curiam decision in Judicial Watch v. Department of Defense, No. 12-5137:

Judicial Watch filed a Freedom of Information Act request seeking disclosure by the Central Intelligence Agency of 52 post-mortem images of Osama bin Laden. The agency refused on the ground that the images were classified Top Secret. Judicial Watch sued, and the district court granted summary judgment for the agency. We affirm because the images were properly classified and hence are exempt from disclosure under the Act.

It didn't take defense-oriented types long to come up with the theory that Dzhokhar Tsarnaev was merely the teenage tag-along to his charismatic older brother when he planted the Boston Marathon bomb.  He wasn't really a Muslim radical, you see, just a fun-loving, impressionable kid.

"F*** America, Boston Marathon Suspect Wrote in Boat."

As police searched for him, and as he lay bleeding in his boat hideout, Boston Marathon bombing suspect Dzhokhar Tsarnaev wrote "F*** America" on the side panel of the boat, police in Massachusetts told ABC News.

Officers said they also discovered the phrase "Praise Allah" on the boat's side panels and several anti-American screeds, including references to Iraq, Afghanistan and "the infidels."

Astonishing.  Dean Erwin Chemerinsky of UC Irvine Law writes an entire article in NLJ on the subject of what the law "requires" in terms of Miranda and the Tsarnaev interrogation, yet he seems to be entirely unaware of a critical distinction and does not mention at all the primary Supreme Court case on the point.  He says the questioning of Dzhokhar Tsarnaev for hours without being Mirandized is "disturbing for what this says as to [the Justice Department's] view of the Constitution."  At the end of the article, he writes, "But the Constitution is not a luxury to be indulged until the ends justify other means. The Fourth, Fifth and Sixth Amendment rights of all criminal defendants must be obeyed, no matter how heinous the crime and regardless of whether it is labeled an act of terrorism. The Bush administration repeatedly forgot this, and it is a shame that in treating Tsarnaev the Obama administration did, too."

There is a distinction between the law requiring someone to do something as an affirmative obligation and requiring the same act as a mere condition to something else.  Chemerinsky writes, "The law is clear that when a suspect is taken into custody, he or she must be given Miranda warnings, and all questioning must cease when the suspect requests a lawyer. Any statements gained in violation of these requirements must be suppressed and cannot be introduced as evidence."  The second statement is true, with some important exceptions, but it does not follow that failure to Mirandize is a violation of the Constitution by itself.

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.

I thank all of you who tuned in and have given me the benefit of your comments, almost all of which were very generous.

Tonight at 9:00 pm Eastern on CNN's Piers Morgan show, our resident masterblogger and former Chief Deputy U.S. Attorney William Otis will debate Harvard Law Professor Alan Dershowitz on whether the death penalty should be available for the Boston Marathon bomber.  Check your local listings.  It should be interesting.

Marc Thiessen has this column in the WaPo with the above headline.  He notes that nearly three years ago, Mr. Holder declared that legislation altering the Miranda rule was "a new priority" and "big news."  Then nothing happened.

Why are we still operating under the same flawed legal framework for questioning of suspected terrorists that Holder pledged to fix three years ago? Why didn't the Obama administration follow through on Holder's promise to work with Congress to change the law? Why are we once again reading a suspected terrorist his Miranda rights before intelligence officials are done questioning him for national security purposes?

Does Congress have the authority to alter the Miranda rule?  Let's go back to the source:

It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities.  Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted.   Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.  We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.  However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.

Miranda v. Arizona, 384 U.S. 436, 467 (1966).

You do.

The Tsarnaev family, including the suspected terrorists and their parents, benefited from more than $100,000 in taxpayer-funded assistance -- a bonanza ranging from cash and food stamps to Section 8 housing from 2002 to 2012, the Herald has learned.

"The breadth of the benefits the family was receiving was stunning," said a person with knowledge of documents handed over to a legislative committee today.

Should Dzhokhar Tsarnaev get the death penalty?  Some believe his crimes so grotesque that only capital punishment will suffice.  Others oppose the death penalty in all circumstances.  Still others would consider it, but have doubts, and think there might be mitigating circumstances that have not yet appeared, perhaps related to Dzhokhar's youth, or to the influence that may have been exerted by this older brother.

I recently posted that libertarians, after a shrewd recourse to silence in the immediate aftermath of the terrorist murders in Boston, have started blasting the very police methods that made possible the relatively quick capture of the surviving killer.

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.

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.

The title of this post suggests more antagonism toward libertarianism than I feel or it deserves.  I do think, though, that libertarians need to ask themselves some questions in light of the Boston Marathon bombing and the capture of the surviving suspect.

Up to now, I have not heard anyone ask how, exactly, a magistrate judge and an Assistant US Attorney happened to wind up in the Boston bomber's hospital room to conduct an initial appearance hearing, and to do so before the pre-Miranda interrogation was anything close to competed.

[A]re judges supposed to read suspects their Miranda rights while they are in police custody? I wouldn't have thought so, and not just because I haven't seen it done on TV. As Bill Otis reminds us, Miranda restricts the government's ability to use evidence collected absent the warning. But it's the government's call as to whether it wants to run the risk of having evidence excluded in order to obtain potentially valuable evidence from a suspect. 

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I can't help but that suspect that it was the Obama administration that decided Tsarnaev should receive the Miranda warning. After all, wasn't it the prosecutor who brought the judge to Tsarnaev's hospital room in the first place? And isn't it almost certain that the local prosecutor, an assistant U.S. attorney, acted on instructions from the highest level of the Justice Department? Line prosecutors don't make decisions about how to treat terrorists in high profile cases when there is time to consult the DOJ.

The end of the FBI's ability to obtain information from Tsarnaev is only the latest consequence of the left's exaltation of undue process over considerations of national security and public safety. For congressional lawmakers who are demanding an explanation for the handling of the Tsarnaev interrogat[ion], there it is.

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.

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?"

I wondered the other day about how the Boston Marathon bombers financed themselves when neither held much of (or any) job and their parents had no discernible excess of cash.  It struck me as possible that they were being financed by others, either here or abroad, who do not wish our country well.  If so, that would mean a wider plot than we are currently being led to believe.