Muslim communities across the United States have watched with trepidation to see what the fallout from the Boston Marathon bombings will be. Likewise, civil libertarians have anticipated that the Justice Department and the FBI would seek ways to suspend normal criminal procedures, on the basis that they need to gather intelligence about terrorist organizations. Similar discussions took place in 2010, following Faisal Shahzad’s attempt to set off a bomb in Times Square.
The Miranda warnings, which the Supreme Court deemed a necessary shield against the abuses of law enforcement in its 1966 Miranda v. Arizona ruling, inform individuals of their right to remain silent and their right to an attorney when subjected to custodial interrogation. Otherwise, their statements may not be used at trial. This was designed to deter law enforcement from subjecting individuals to coercive questioning. The Supreme Court has created a public safety exception that allows law enforcement to forego the reading of Miranda rights in emergencies. The Obama administration expanded this exception to terrorism-related cases in a secret 2011 memorandum.
Though Dzhokhar Tsarnaev had no known links to terrorist organizations, the Department of Justice indicated that it intended to question him “extensively” on matters likely to exceed the scope of questioning around undetonated explosives, as the goal was “to gain critical intelligence.” Tsarnaev was then interrogated for 16 hours, while he was strapped to a hospital bed with life-threatening injuries, before being informed of his Miranda rights.
What was the basis for the denial of the Miranda warnings? Boston officials had indicated that the emergency was over. And law enforcement acknowledged the absence of information linking Tsarnaev and his brother to any designated terrorist organizations. Given these facts, it is hard to imagine what kind of case, once designated as an act of terrorism, would not qualify for dispensing with Miranda. And one is left to conclude that the motivation for the denial has to do with Tsarnaev’s connection to Islam. The implication is that Islam, in and of itself, can be associated with terrorist organizations. Time will tell if this departure from normal criminal procedures will apply in cases involving non-Muslims. But the expansion of prosecutorial authority seems to go in only one direction.
It might seem as though little is at stake here for Tsarnaev. While he is entitled to a presumption of innocence, the televised, play-by-play nature of the pursuit for him, once he was identified, might make a guilty verdict a foregone conclusion. With the death penalty now on the table, the statements that Tsarnaev made in the course of his interrogation may mean the difference between life and death. The Supreme Court has not explicitly ruled on this issue, but at least two appellate courts have said that statements obtained in violation of Miranda may still be considered at the sentencing phase—even if they were excluded from trial, and even if they are in the context of a capital case.
Without knowing the potential consequences of his statements, of which the government was likely aware, Tsarnaev was apparently misled into believing that he had nothing to lose by cooperating. In the hands of government agents, he relied on the expectation that law enforcement would behave lawfully.
After the unprecedented lockdown of the entire Boston area, which heightened the public’s sense of terror, law enforcement agencies were well-positioned to push for an exception to Miranda. But they have not shown how the exception was warranted as a means of protecting public safety, or even as a means of gathering intelligence about so-called terrorist organizations. In forfeiting Tsarnaev’s rights in this instance, we lose a lot more. We further legitimize the discriminatory treatment of Muslims in criminal proceedings, and we eviscerate Miranda, which safeguards every citizen’s rights. Let’s fervently hope that the court Tsarnaev appears before will recognize what the Obama administration has failed to see: If Tsarnaev does not have these rights, perhaps eventually no one will.
To learn more about the Muslim Defense Project, visit http://www.nlgnyc.org/mdp. Special thanks to MDP members Bina Ahmad and Deborah Diamant for their contributions to this essay.