The right to remain alive

The right to remain alive

In accord with the wise principle that the U.S. Constitution is not a suicide pact, the FBI has chosen to question Boston Marathon bomber Dzokhar Tsarnaev without first reading him the Miranda warnings about his right to remain silent and have a lawyer present.

Predictably, civil libertarians have risen up in protest against what they see as one more infringement on rights in the war on terror, not quite on the order of a drone strike against a citizen abroad, but getting there. Actually, the bureau has solid legal grounds for dispensing with Miranda and, practically speaking, should have no worries about the consequence.

At the other end of the political spectrum, Republican Sens. Lindsey Graham of South Carolina and John McCain of Arizona have called for declaring Tsarnaev an enemy combatant and shipping him to Guantanamo Bay for trial before a military tribunal. While the idea is attractive, it’s also silly.

The Miranda warnings are designed to prevent police from squeezing confessions out of suspects in violation of their Fifth Amendment rights against self-incrimination. If a cop fails to mirandize a prisoner, the courts will bar prosecutors from using any statements as evidence.

But the authorities have leeway under a “public safety exception” to the Miranda rule. So said the Supreme Court in a 1984 case based in Queens. A woman told police that an armed and dangerous man had raped her. Cops found the man at a supermarket; he had a shoulder holster, but it was empty.

An officer handcuffed the suspect and — without mirandizing him — asked where the gun was. He gestured toward a stack of soap cartons. Cops found a loaded revolver. Lower courts threw the evidence out because Quarles hadn’t been read his rights. The high court reinstated the evidence.

Writing for the majority, Chief Justice William Rehnquist declared: “we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety . . .”

“We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”

Concern for public safety is crystal clear in Tsarnaev’s case. He and older brother Tamerlan built an arsenal of bombs, unleashed two at the marathon and detonated additional explosives while pursued by police.

Crucial questions of the moment for the wounded and hospitalized Tsarnaev are: How much more ordnance, if any, had they stockpiled, and were they working with accomplices. The lives that may be hanging in the balance far outweigh giving Tsarnaev what, under these circumstances, would be a meaningless introduction to the Bill of Rights.

The FBI already has proof beyond all doubt, not just beyond reasonable doubt, that Tsarnaev is guilty. Thus, clearly, agents will question him in the hope of averting more harm rather than to trick him into a confession.

On the other hand, in the extremely unlikely event that a court eventually found the FBI to have overstepped bounds, out would go Tsarnaev’s statements, and his rights would be fully vindicated as he went off to prison anyway.

That said, a decision to withhold Miranda is not taken lightly.

In 2001, during the administration of President George W. Bush, agents mirandized would-be jetliner shoe bomber Richard Reid four times over two days, starting immediately after his arrest. In 2009, the FBI made the opposite judgment and refrained from mirandizing attempted underwear bomber Umar Farouk Abdulmutallab for 50 minutes after taking him into custody.

Speaking of the Miranda warnings, FBI Agent Timothy Waters explained as follows the proceedings that produced Abdulmutallab’s conviction and upheld the public safety exception:

“It stops the process dead in its tracks. I didn’t feel it was necessary . . . We needed information right now about individuals willing to martyr themselves on other airplanes.”

The same sound logic must now apply to Tsarnaev. As for sending him to Gitmo as an enemy combatant, that status is reserved by law for Al Qaeda-linked terrorists abroad.

A radicalized U.S. citizen, operating on U.S. soil with no known ties to Al Qaeda, simply does not qualify — except in the rhetoric of politicians playing for partisan gain.

Read more: new york daily news editorial

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