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Obama, Presidential Power and the Boston Marathon Bomber

The initial decision by the Obama Administration and the FBI not to read Dzhokhar A. Tsarnaev, the accused Boston Marathon bomber, his Miranda rights was wrong on at least two counts. The first is from a perspective of the law, the other by way of a broader principle regarding the rights of individuals in a democracy. But this decision highlights a continuing problem in the United States since the terrorist attacks in 2001–the assertion of extra-constitutional power by presidents to flout the law in the name of national security.

The Supreme Court ruled in Miranda v. Arizona, 384 U.S. 436 (1966) that the police must advise individuals of their rights at that time they are taken into custodial arrest. At the time they are detained and when police questioning turns from general information gathering of an individual to accusatorial interrogation, that is when the Miranda warnings must be given. The warnings are a product of the Fifth Amendment right against self-incrimination.

In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court created a narrow exception to the Miranda warning requirement. That case involved a situation where police chased a suspect into a store. They apprehended and searched him, and then found an empty holster. They suspected he had ditched a gun. Before giving him his Miranda warnings they asked him where the gun was, he told him, and then they gave him his rights. The Supreme Court upheld this as valid. They ruled that police could question a suspect to address imminent threat to the safety of public or officer. Once that threat was abated, then the police would need to offer Miranda warnings. The public safety rule is not a blanket exception to obtain evidence or testimonial information that may be used against individuals to convict them.

With Dzhokhar A. Tsarnaev, the police were within the Constitution not to read him his rights when they first apprehended him. They needed to determine if he had bombs or other weapons that could threaten police or public safety. Once that threat was addressed they should have Mirandized him. It would have taken a few seconds and no harm would have followed from doing that.

There is little evidence that Mirandizing someone really hurts a police case, but not doing so can be significant. In general, information gathered in violation of the Miranda requirement cannot be used in court to convict a person. Thus, potential information that the police gather on Tsarnaev might not be allowed in court to prosecute him. A review of post-Quarles cases do not make it clear what the public safety exception will allow. But would it not be better not to take a chance? Why risk prosecution by not giving him his rights? Depending on what he is charged with and what evidence there is, this decision could be legally damaging to the government’s case.

The case for not reading suspects their rights is dubiously close to the argument for torture. Some argue that torture is justified because it will elicit valuable information otherwise not able to be secured. Or, torture is necessary to find the location of the “ticking bomb” when time is precious. The best evidence is that tortured information is generally unreliable, notwithstanding the claims of the movie Zero Dark Thirty. Most individuals will say anything to stop torture. Yet the case for torture and the public safety exception both rely upon an “ends justify the means” rational and false empirical claims about whether people will talk and what they say is true.

But the second reason why not Mirandizing Tsarnaev is wrong is more about the broader concept of democracy and human rights in a free society. After 9/11, the Bush Administration invoked questionable legal doctrines about the rights of the president and the government to bypass the Constitution and international rights in the apprehending, detaining and prosecution of suspected terrorists. In a series of four legal memoranda of dubious constitutional validity, they concocted questionable theories about torture and tried to offshore illegal activities to places like Guantanamo Bay in Cuba.

For the most part, the Supreme Court rejected the Bush Administration’s questionable legal theories. In a series of cases most notably including Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court ruled that all individuals–not just American citizens–held within U.S. territories, must receive the protection for their rights that the Constitution demands. Yet despite these rulings, both Bush and now Obama have continued to press these flawed legal theories. Most recently, the Obama Administration pressed the case to support drone warfare overseas, with the implication that it could be used to execute American citizens absent due process and a trial. Senator Rand Paul highlighted this concern, pressed the Obama administration to clarify its position, but only achieved marginal success. Then the Obama administration deployed the public safety exception with Tsarnaev.

Presidents do not have extra-constitutional power. Supreme Court Chief Justice Hughes writing for the majority in Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934) declared:

“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.”

Respect for our constitutional rights is not something we do when it is just convenient and ignore when there is a crisis. It is something that is required of a democratic free society. It is what separates the U.S. from non-democratic countries. Tsarnaev is a U.S. citizen arrested and accused of crimes in this country. There is no reason to exempt him from the Constitution. In a free society the government carries the burden to prove guilt and it is required to play by the rules. The rule should apply here too. However, beyond this case appeals to national security are seductive and slippery. They often justify denials of individual rights and aggrandize governmental power dangerously beyond what the Constitution permits.

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Author: David Schultz is a professor in the school of business at Hamline University. He can be reached at [email protected]

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