An easily frightened nation

[UPDATE: According to the transcript of the questioning of Dzhokhar Tsarnaev on April 22 by the authorities (see page 4), he actually was read his Miranda rights. So it looks like there was a change in policy on this and that is a good thing.]

What is it about acts like the Boston bombing that make people become so unhinged and overthrow all due processes? Already we have calls for Dzhokhar Tsarnaev to be tortured, denied Miranda rights, and treated as an enemy combatant.

Stephen R. Walt says that this does not speak well about the nation’s psyche.

Although politicians from Barack Obama to Deval Patrick offered up the usual defiant statements about America’s toughness and resilience in the face of terror, the overall reaction to the attacks was anything but. Public officials shut down the entire city of Boston and several surrounding suburbs for most of the day, at an estimated cost of roughly $300 million. What did this accomplish? It showed that a 19 year-old amateur could paralyze an entire American metropolis. As numerous commentators have already pointed out, a city-wide lockdown is not what public officials have done in countless other manhunts, such as the search for rogue cop Christopher Dorner in Los Angeles. And Dorner was a former Navy reservist who had killed four people and who was at least as “armed and dangerous” as the Tsarnaevs.

I cannot help but think that our political leaders have been letting us down ever since 9/11. Instead of teaching Americans that that actual risk from terrorism was minimal, they have kept us disrobing in security lines, obsessing over every bizarre jihadi utterance, and constantly fretting about the Next Big One. An entire industry of “terrorism experts” has arisen to keep us on the edge of our seats, even though many other dangers pose a far greater risk.

The White House has said that they will not declare Tsarnaev to be an enemy combatant, perhaps to avoid a repetition of the last ill-fated attempt to do so with Jose Padilla, but the US Attorney leading the case has said that she will not read Tsarnaev his Miranda rights.

People may recall the hysteria over Jose Padilla. That American citizen was arrested on May 8, 2002 at O’Hare airport, accompanied by screaming headlines that he was planning to detonate a radioactive bomb. That was used to declare the so-called ‘dirty bomber’ to be an enemy combatant, denied a trial in civilian courts, and tortured to the point of mental damage. When a habeas corpus suit was filed, the Second Circuit Court of Appeals in August 2003 ruled that “Padilla’s detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat”.

The government appealed to the US Supreme Court which overruled the Appeals Court verdict on a technicality that it had been filed in the wrong jurisdiction and that Donald Rumsfeld should not be the defendant. After Padilla re-filed but before his appeal went to the US Supreme Court again, his case was transferred to civilian courts. In that trial, the ‘dirty bomb’ charge was quietly dropped, having served its purpose of scaring people out of their wits, and he was charged with “supporting Islamic terrorism overseas, conspiracy to murder, kidnap, and maim people in a foreign country; conspiracy to provide material support for terrorists; and providing material support for terrorists”. Conspiracy charges are notoriously vague and the judge’s handling of the trial was controversial. Padilla was convicted and now serves a 30-year prison sentence.

Some will try and use the latest bombing to argue that the whole world is a battlefield with the US also part of the combat zone and hence the president has the right to declare even American citizens caught within the US to be enemy combatants and deny them all due process rights. The Obama administration should be given credit for resisting those calls, though criticized for denying Miranda.

The only hope is that the courts will strongly strike down attempts to circumvent Miranda but I am not sanguine that it will happen. The ‘home of the brave’ turns out to be one that is easily scared by two young men with home made explosives.


  1. psweet says

    I still don’t understand the whole “refusing to read the Miranda rights” bit. It’s not as if reading you your rights grants them — you have them regardless. Which means that whether they’re read or not, anything he tells the police at this point is not only not usable in court, it poisons future interrogations.

  2. Timothy says

    My understanding is the same as psweet. I find this discussion baffling.

    Any legal scholars in the house?

    Like Mr. Walt, I too am puzzled by the action of Boston’s leaders to shut parts of the city down. I was presuming that — after multiple subjects had been caught — the Mayor of Boston would have unveiled knowledge an an extensive network of people who were capable of doing harm to the city, and that the shutdown had been necessary to capture all these people.

    But so far … nothing.

    Thanks for an excellent post, Mano.

  3. rory says

    I’m not a lawyer, but I don’t think it’s accurate to say that the failure to give the Miranda warning necessarily invalidates the potential future evidentiary value of the suspect’s statements. Without issuing a Miranda warning the answers to any questions cops ask him may be inadmissable, but any voluntary declarations he makes are still fair game. Now, I wonder if a defense attorney would argue that no statement can be construed as voluntary when he’s handcuffed to a bed in an ICU with an army of cops and feds staring him down, but I don’t know how a judge would rule on that.

  4. says

    @1: Agreed. Not that it matters much for the kid (and he is just a kid)…but if there is a larger net to be cast, why in the world would you want to fuck up potential prosecutions?

    Not saying I think this was anything more than 1 kid getting sucked into his older brother’s anger — but nobody knows yet. But that’s certainly the way it looks.

    Again, we’re either a nation of laws and a Constitution that protects the rights of accused — or we’re not.

  5. Mano Singham says

    If I had to hazard a guess as to the motives of the government in denying Miranda rights in this case, it would be that Tsarnaev is going to be convicted no matter what the government does. There is absolutely no chance of him being freed because the government violated his constitutional rights. So the government essentially gets a free shot at creating a huge loophole in the Miranda protections that they can use when the next case comes along where the defendant may not be that unsympathetic.

    Prosecutors like to have the widest possible latitude.

  6. says

    Remember how they maneuvered the trial for John Mohammed and Lee Malvo, so they could try it in an area with a death penalty? Ugh. I expect that he’s going to be made an example of -- i.e.: abused so that he encourages more terrorists.

    I managed to avoid most of the story arc of the incident, but it sounds like the cops fired a whole lotta bullets all over the place. Speaking of scary.

  7. Corvus illustris says


    … the president has the right power to declare even American citizens caught within the US to be enemy combatants and deny them all due process rights. The Obama administration should be given credit for resisting those calls, though criticized for denying Miranda …

    it’s necessary to ask what “denying Miranda” means in this context. IANAL but the “public safety exception” appears to apply to situations in which--for example in the Boston context--police could ask Dzh-T about other bombs or other bombers without giving him a Miranda warning--presumably to avert further carnage. If that’s all Obama/Holder have in mind, that’s nothing new. Asking further questions of Dzh-T without warning, solely for the purpose of getting him to incriminate himself, would not fall under the exception. If that’s what they’re trying to pull, they deserve something stronger than criticism.

  8. reneerp says

    The initial hearing was held at Tsarnaev’s bedside where he was indeed read the Miranda and had a counsel.

  9. Dunc says

    As someone who grew up in the UK at the height of the IRA’s mainland bombing campaign (which, let’s not forget, included blowing up the hotel where the current governing party were holding their annual conference, not to mention launching mortar attacks on 10 Downing Street), I’ve gotta say I find the whole business ridiculous. Keep calm and carry on.

  10. sailor1031 says

    It seems to me that while there are obviously scared, irrational members of the public, the real hysterics and fear come from the media, a trigger-happy police culture and, most of all, from our great and glorious leaders in congress. In fact you can predict the level of incoherence and irrational speech simply by knowing the political affiliations of those doing the frothing.

  11. baal says

    Miranda is weak these days. The usual net effect is to allow grounds for an appeal when you might not otherwise have one. This is good for a defendant since it gets can get an appeals court to at least hear what you have to say and allow for remedy of a trial court problem that you couldn’t necessarily appeal.

    That said, I saw the back and forth on Miranda on the news 2/22 and wondered what the issue was. They have what looks like extremely solid evidence that they have the right person now to try for the bombing (what charge they are using is another abuse but for a different post). With all that data, what would they hope to gain by questioning the suspect without providing the Miranda warning? Were they hoping for a Scooby Doo tell all confession that they thought would not happen were he mirandized? Don’t the talking heads know that confessions when you’re in serious medical care aren’t exactly solid to use in court anyway? Did they think they could get him to revel a secret plot just waiting to be sprung the second his heart fails? Seeing little to be gained by not mirandizinghim, they should have done so (and apparently did).

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