If the Government Designates You an 'Enemy Combatant' Your God-given Rights are No Longer Protected by the U.S. Constitution
The ethnic Chechen college student suspected in the deadly Boston Marathon bombings will not be treated as an enemy combatant in the legal proceedings, White House spokesman Jay Carney said on Monday. Some Republican lawmakers had called on the Obama administration to designate Dzhokhar Tsarnaev as an enemy combatant, a designation that would allow him fewer rights such as the appointment of counsel. The White House rejected those appeals. Carney said Tsarnaev would be handled through the usual civilian criminal court process, particularly since he is naturalized American citizen and as such by law cannot be tried in a U.S. military commission. "He will not be treated as an enemy combatant," Carney told reporters at a briefing. "We will prosecute this terrorist through our civilian system of justice. Under U.S. law, United States citizens cannot be tried in military commissions." The "enemy combatant" status designated for suspects arose in the aftermath of the September 11, 2001, attacks and some of these have been detained at the U.S. military prison at Guantanamo Bay, Cuba. Carney said the decision was made by Attorney General Eric Holder and the Justice Department and that the "whole national security team supports this decision." "And let's be clear: There is not an alternative for a U.S. citizen to be tried to a military commission by law," he said.[Reuters]Constitution Check: Are there limits on questioning a bombing suspect?
April 22, 2013National Constitution Center - Lyle Denniston looks at the issues of Miranda warnings, Boston Marathon bombing suspect Dzhokhar Tsarnaev, Tsarnaev’s protections under the Constitution’s Fifth Amendment, and the public safety exception.
The statements at issue:
“The police can interrogate a suspect without offering him the benefit of Miranda [warnings] if he could have information that’s of urgent concern for public safety. That may or may not be the case with Dzhokhar Tsarnaev. The problem is that Attorney General Eric Holder has stretched the law beyond that scenario.”– Emily Bazelon, a columnist for Slate.com, in an article on April 19, “Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights?”
“[As of Saturday night] Authorities have not read him his Miranda rights, which include the right to remain silent and the right to an attorney. Federal law enforcement officials said they plan to use a public safety exception, outlined in a 1984 Supreme Court decision, ‘in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence.’”
We checked the Constitution, and…
Some three decades ago, the Supreme Court for the first time gave police and federal agents the authority to avoid giving criminal suspects Miranda warnings about their constitutional rights, when the public safety justified that suspension. That authority, given in the 1984 decision of New York v. Quarles, has since been expanded by lower courts so that, even if a suspect has claimed the right to remain silent or the right to a lawyer, the questioning can go on if the public safety threat remains.How long such questioning can continue, and what kinds of questions can be asked, is now the source of considerable uncertainty, as officials have developed interrogation policies they think are necessary in dealing with terrorist incidents. But one thing does remain certain: the Constitution still requires that the police not use outright coercion in order to get answers even to the most pressing questions. If authorities want to use the evidence that they gain by such questioning, that evidence must have been given voluntarily.
In the case of the 19-year-old suspected of bombing the Boston Marathon and other crimes after that, Dzhokhar Tsarnaev, there is no doubt that he has some protection under the Constitution’s Fifth Amendment against being forced to implicate himself. He is a U.S. citizen, so he has the legal shield of the Constitution. (On April 2, we discussed the rights during terrorism investigations of suspects who are not U.S. citizens; those rights may differ.)
The night that Tsarnaev was captured in Watertown, Massachusetts, the chief U.S. prosecutor, Carmen Ortiz, told the news media that the suspect would not be given Miranda warnings immediately when questioning began, and she cited the “public safety exception.”
However, under the terms of a 2010 Justice Department legal memo (criticized by Slate.com’s Emily Bazelon in her column), questioning of a terrorism suspect who has not been told of his rights may also continue even beyond concerns for the moment, in order to potentially get significant intelligence information “not related to any immediate threat.” The memo cautions that the officers conducting the interrogation should get approval from their superiors to go further into intelligence-gathering.
None of these issues that are specifically related to terrorism investigations have yet reached the Supreme Court, so federal agents and police use this added authority without knowing what the legal risks are.
There is some risk that, if the public safety exception and the 2010 Justice Department memo are pressed too far by officers in the field, they could put in jeopardy their chances of using at later trials the evidence of crime that has been gathered. The calculation thus has to be made whether to run that risk. That involves a balancing of the needs of trial prosecutors with the needs of finding out about potential future threats.
What investigators are generally expected to understand is that the whole purpose of the Miranda warnings–which are mandated by the Supreme Court’s decision in the 1966 case Miranda v. Arizona–is to make sure that any incriminating evidence that results from questioning is available for use at trial, and the warnings are designed to help assure that whatever the suspect has said that gets him into trouble was said voluntarily.
If the threat of terrorism rises to the level that intelligence is more important than criminal evidence, then official policy, as outlined in the 2010 Justice Department memo, for example, will give it a higher priority.
That, however, is a judgment call that has to be made one case at a time, as in the case of the Boston bombing suspect. From all that officials involved in the investigation in Boston have said, it may well be that they have such overwhelming evidence to support prosecution that they have little need to get Tsarnaev to confess and can focus, instead, on finding out what he may know–if anything–about other threats or accomplices.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
