At The New Yorker, Amy Davidson writes:
What is the “public-safety exception” to the Miranda warning, the requirement that defendants be told their rights, including that they can remain silent and have an attorney? Does it grant the police a limited ability to ask where a bomb is or which way an accomplice ran, and use the answers in court? Or is it a free forty-eight-hour questioning coupon the government gets for calling someone a terrorist? Can it get a rain check to use those supposed forty-eight hours whenever it wants if, as is apparently the case with Dzhokhar Tsarnaev, the Boston Marathon bombing suspect, the person they want to talk to is in no state to be questioned?
The legal discussion of the case this weekend has offered too many examples of how outer limits become inner ones, or just assumptions. Emily Bazelon has a good summary of where the public-safety exception came from—the 1984 Quarles case, involving a rapist caught with an empty shoulder holster; his gun, which his victim had just seen, was lost in the supermarket where he was arrested—and why its invocation in Boston is a problem. “Where is the gun?” or, as in another case (noted on the F.B.I.’s Web site), “Which wire do I cut to disarm this bomb?” are questions one can imagine asking, in those situations, before a warning. That is not what seems to be happening in Boston.At The Wall Street Journal, former Attorney General Michael Mukasey writes:
If your concern about the threat posed by the Tsarnaev brothers is limited to assuring that they will never be in a position to repeat their grisly acts, rest easy.
The elder, Tamerlan—apparently named for the 14th-century Muslim conqueror famous for building pyramids of his victims' skulls to commemorate his triumphs over infidels—is dead. The younger, Dzhokhar, will stand trial when his wounds heal, in a proceeding where the most likely uncertainty will be the penalty. No doubt there will be some legal swordplay over his interrogation by the FBI's High-Value Interrogation Group without receiving Miranda warnings. But the only downside for the government in that duel is that his statements may not be used against him at trial. This is not much of a risk when you consider the other available evidence, including photo images of him at the scene of the bombings and his own reported confession to the victim whose car he helped hijack during last week's terror in Boston.
But if your concern is over the larger threat that inheres in who the Tsarnaev brothers were and are, what they did, and what they represent, then worry—a lot.
