The two immediate what-everyone’s-talking-about legal issues in the Dzhokhar Tsarnaev case concern his Miranda rights–that is, at what point must he be read his Miranda rights notifying him that he has the right to remain silent and to the counsel of an attorney–and whether he can, and if so should, be classified as an enemy combatant under post-9/11 laws. Dan Crawford has asked me to post on the Miranda issue, and so I will, along with the somewhat overlapping but distinct enemy-combatant issue, but with the caveat that I have no great expertise in either Miranda-rights law or enemy-combatant law.
These issues concern three provisions in the multi-guarantee Fifth Amendment. The Amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Miranda issue concerns the self-incrimination clause, the clause that reads “nor shall be compelled in any criminal case to be a witness against himself.” The enemy-combatant issue stems from the lengthy first clause, the one that requires presentment or indictment of a Grand Jury in capital or other infamous crime (now interpreted as all serious crimes, whether or not they’re infamous, although this crime certainly passes the infamy test, so the originalists and textualists should be happy), and also from the due process clause.
Okay, and also from the insistence of certain Republican Senate grandstanders that Tsarnaev be held as an enemy combatant. At least if issue is an operative word in enemy combatant issue. Which of course it is.
I’ve read several good news and blog analyses discussing these issues in the last couple of days, but the most comprehensive one on Miranda is a blog post by Orin Kerr (h/t Bill H), a law prof at Georgetown and a former clerk to Justice Kennedy, at The Volokh Conspiracy, a libertarian/right-leaning blog where he writes regularly. (Kerr is the least right-wing of the several writers there, all of whom are law profs, most of them also former Supreme Court law clerks.)
The essence of Kerr’s post–and a key point made also by Katy Waldman at Slate, in another good article on the subject–is that under Supreme Court jurisprudence dating back about three decades, the issue of the constitutionality of a failure to give a Miranda warning arises only if, and then only when, the prosecution attempts to use the defendant’s pre-Miranda-warning statements at the trial. Obvious examples are a confession, an acknowledgment that the defendant knows another of the defendants, an admission that the defendant was at a particular location at a particular time, or that the gun used in the crime belongs to him.
It is in some respects–and until now I had thought of it as, in essence–part and parcel of the more generic “exclusionary rule,” which prohibits prosecutors from using evidence at trial that was obtained unconstitutionally. Usually (but, I believe, not exclusively), the formal exclusionary rule comes into play when evidence is seized in a search that violates the Fourth Amendment’s search-and-seizure provision–a warrantless search that does not fall within the Supreme Court’s seemingly-metastasising exceptions to that constitutional provision (freedom! liberty! originalism! textualism!)
The exclusionary rule was developed by the Supreme Court to effectuate the Fourth Amendment, rather than the Fifth Amendment, but to the extent that I had thought about them at all (which is somewhat, but mainly after a new Supreme Court case on one or the other was issued), I still had thought of them as essentially the same. But Kerr and Waldman point out that under Supreme Court Miranda jurisprudence, prosecutors can use some tangible “fruits” of an improperly un-Mirandized statement; just not the statement itself; the prosecutor can use the gun that the defendant told them where to find, but the prosecutor cannot tell the jury that the defendant told them where he put the gun.
A more important distinction, though, both in the Tsarnaev case and, well, for you and me, is this: Law enforcement interrogators can ask the defendant questions during an improperly un-Mirandized interrogation but then cannot use the defendant’s statements at trial. But law enforcement cannot just force their way into your home, or search your car, or search you, in violation of the Fourth Amendment provided that they don’t later try to use what they found as evidence at trial or try after the unconstitutional search to get a search warrant based on the what they found during the unlawful search.
That’s because there is a difference between the very nature of the Fifth Amendment self-incrimination provision and the nature of the Fourth Amendment search provision, according to the Supreme Court. The Court has interpreted the former as a bar to compelled self-incriminating trial testimony–against being a trial witness against yourself. The Fourth Amendment search clause protects against the actual search, independent of your rights at trial.
I think that’s a distinction that some commentators are missing in the Tsarnaev case, and in light of the unusual specifics of this case, it strikes me as as pretty important. As in, calm down, fellow civil libertarians. For now, anyway.
The purposes of most law enforcement interrogations are to try to solve the crime, to obtain enough evidence to gain a conviction, and (often, as part of solving the full crime, including learning its breadth) to identify others who participated in the crime. In this case, though, there is unequivocally no additional evidence necessary to successfully prosecute Tsarnaev. They even have the statement from the owner of the hijacked Mercedes SUV that the brothers confessed to him that they were the Marathon bombers–unnecessary icing on a very large, multi-ingredient cake. They do not need a confession, nor any lesser acknowledgement or admission from Tsarnaev, in order to successfully prosecute him. Nor to argue for the death penalty.
What they do need is to know with certainty that there are no explosives still stored somewhere, and that there are no other members of their terrorism conspiracy. Both appear unlikely, it certainly seems. They probably took all their explosives and guns with them on their wild ride late Thursday and early Friday (they had a lot with them). The older brother reportedly was strongly disliked among the members of the Cambridge mosque he attended, and Muslim Causas separatists are, reportedly, just that: separatists at war with Russia. So if the older brother learned his explosive-making craft overseas, it is almost certain that he wasn’t enlisted there to explode bombs at the Boston Marathon. But law enforcement does need to try to set these issues to rest.
What law enforcement does not need is to try to use un-Mirandized statements by Tsarnaev at his trial. If the Department of Justice does try, that would be an absolutely unnecessary attempt to distort and stretch Miranda jurisprudence, and the only conceivable purpose would be a decision by Obama (who presumably will be making politically-charged calls in the prosecution) to wave a red flag in the face of civil libertarians, as part of his ever-present quest to be viewed as a “centrist,” and the failure he shares with so many political pundits and other pols to recognize that 2002–like 2010–has passed.
The Marathon bombings are not 9/11. They are instead the Oklahoma City Federal Building bombing, in which the two perpetrators held radical ideological views that they shared with many others, including members of large loosely-connected groups that advocate violence and that hold deep grudges against the American government. But those groups, in this case including al Qaeda, likely were not a part of the acts of terrorism perpetrated by the two pairs of perpetrators.
Which brings me to the issue of enemy-combatant status, and of Lindsey Graham et al., who themselves think it’s still 2002 or, more likely, think voters do. But as Rand Paul can attest, the public doesn’t. Including much of the Tea Party public. Even maybe in South Carolina, where Graham hopes to fend off a Tea Party primary challenger.
There are by now enough articles and blog posts published since Friday night, by people with extensive knowledge about enemy-combatant law–which I certainly do not have–that I think I should just say, in summary on this, that, according to those articles, the law does not permit Tsarnaev, a United States citizen charged with committing a crime on United States soil and apprehended not on an overseas battlefield but instead in Watertown, MA, from being declared an enemy combatant.
But to those who insist otherwise, I suggest that they beware of the double-edged sword that they want to manufacture. Over the weekend, some Republican senator (I don’t remember which one) pronounced the United States “the battlefield”–terminology used by the Supreme Court in their post-9/11 enemy-combatant opinions–because the act terrorism occurred in the United States. Any act of terrorism in the United States, he claimed, renders the United States a battlefield.
Which in turn requires a definition of “terrorism,” I would think. And since there is no evidence that the Tsarnaev brothers were connected with any foreign group at all, much less one in which the enemy-combatant statute applies, this senator is proposing, if unwittingly, that anyone accused of, say, using a semi-automatic weapon loaded with a huge magazine could, and should, be declared an enemy combatant. A designation whose purpose is to strip the defendant of constitutional due process rights and allow permanent detention without trial.
I say, bring it on. Gitmo for anyone suspected of using a semi-automatic assault rifle with large magazines in the commission of crime! That’ll have to do in lieu of Gitmo for silly, hypocritical politicians.