Boston suspect’s Miranda rights withheld for more than 60 hours

More than 12 hours after Dzhokhar Tsarnaev was taken into custody, authorities have yet to read the 19-year-old Boston bombing suspect his Miranda rights.

President Obama said of the investigation Friday night that “it’s important that we do this right.” But Tsarnaev will not be advised of his right to remain silent or his right to counsel before authorities begin questioning him. While this is not the first time the government has invoked what is known as the public safety exception to Miranda, the Boston case will be an important test of the limits of civil liberties and the legal system.

Investigators have said that the exception was necessary in this case because it was unclear whether an possible accomplice was still at large, or whether the suspect had additional explosives.

The American Civil Liberties Union (ACLU) issued a statement Saturday morning that laid out its objection to such a broad application of the exception.

“The public safety exception should be read narrowly, it applies only when there is a continued threat to public safety, and is not an open-ended exception to the Miranda rule,” the statement read.

Vince Warren of the Center for Constitutional Rights also called on investigators to follow the rule of law, saying Saturday, “If officials require suspects to incriminate themselves, they are making fair trials and due process merely option and not a requirement. To venture down that road again will make law enforcement accountable to no one.”

According to NBC News, authorities could have as much as 48 hours to question Tsarnaev, an American citizen, before reading him his rights. That would be a far wider window than has been used in previous cases of suspected terrorism.

The “public safety exception” to Miranda has existed since 1984, when the Supreme Court ruled that police could question a suspect without reading his rights about possible immediate threats. But in 2010, Attorney General Eric Holder expanded the exception to include questioning when “the government’s interest in obtaining…intelligence outweighs the disadvantages of proceeding with unwarned interrogation.” The memo was written after the Obama administrtaion came under criticism from Republicans who claimed the White House wasn’t being aggressive on terrorism cases.

The narrow application of the public safety exception has not hampered terrorism prosecutions but it has raised concerns from civil rights groups. In 2009, Umar Farouk Abdulmutallab, the Christmas Day “underwear” bomber, was questioned for 50 minutes before authorities read him his rights. Faisal Shazad was convicted in 2010 of plotting to bomb Times Square. He was given a miranda warning after being questioned for a short time and he continued to speak to authorities. Both men were sentenced to life in prison.

The government has successfully prosecuted more than 300 terrorism-related cases since September 11, 2001, but some lawmakers continue to insist that the civilian justice system is not an appropriate venue for such cases. In a statement released Friday night, Sen. Lindsey Graham, the South Carolina Republican and Arizona Senator John McCain suggested that Obama should consider abandoning civil proceedings in Tsarnaev’s case. “Now that the suspect is in custody, the last thing we should want is for him to remain silent.” The statement continued, “Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel.”

Graham and McCain have led their party’s opposing to closing the detainee prison at Guantanamo Bay Cuba, where 166 men _ many picked up in Afghanistan and elsewhere a decade agao _ continue to languish, almost all without charge. Obama pledged on his first day as president that he would close the facility and use civilian courts to try the men accused of orchestrating al-Qaeda’s attacks on the United States on Sept. 11, 2001. But those efforts were successfully blocked by Congress.

Obama has however refused to send any more men to the facility. Individuals such as Shazad, Abdulmutallab and others captured overseas, including Osama bin Laden’s son-in-law, have all appeared in Federal Court.

Late Friday, Obama seemed already prepared for a renewed debate on the issue now that a suspect is in custody in the Boston attacks.   ”When a tragedy like this happens, with public safety at risk and the stakes so high, it’s important that we do this right,” he told Americans. ” That’s why we have investigations.  That’s why we relentlessly gather the facts.  That’s why we have courts.”

Because the government and prosecutors are the arbiters of what qualifies as “government interest” and an “imminent threat to public safety,” this case could raise significant civil liberties issues in the future if this application of the exception holds up in court. The Obama administrtaion’s policy on the public safety exception to Miranda has long upset civil rights groups who see it as a major infringment on an important legal protection.  The American Civil Liberties Union called miranda  “a constitutional rule, not an interrogation policy,” in a 2010 statement and has continue to oppose the loose application of the public safety rule since then.