By Mark David Blum, Esq.
A quick lesson on Miranda warnings. First, unlike you see on television, police do NOT have to read you your Miranda warnings (rights) when you are arrested. On TV, it is done for dramatic effect. In the real world, not so much. The rule set by the Supreme Court was that if you were (1) in “custody” and (2) being “questioned”, then you had the right to remain silent and the right to counsel. "Custody" and "interrogation" are what we defense attorneys fight about all the time. Obviously the courts have no power to punish an illegal police interrogation so the solution by the courts was to say a failure to properly warn a detainee was grounds to preclude the use of any information gathered. The theory being that police would have no incentive to gather an illegally secured admission because it could not be used against the accused.
Further, as a quick lesson in constitutional law: American citizens – US born or naturalized people (unlike John McCain) – have only two rights that neither friend nor foe coming in off the prairie enjoy. Citizens can vote and citizens can run for President. Otherwise, all laws, rights, rules, and protections of the land apply to everyone regardless. We also seem to think we can enforce American law in foreign lands but that is another discussion.
Back to Miranda: If you are the FBI investigating the Boston bombings and you have substantial evidence that a particular individual was involved, you go get them. That was done and serious props to law enforcement. But now comes the real question. Police and others want to know about the size of the threat, whether the threat is ongoing, and who else was involved. So you are the U.S. Attorney and have this quandary. Do you preserve the evidence for trial or do you hunt to see if there is something else out there. What do you do?
Since 9/11/01, our national policy thanks to President Bush (actually more likely one of the dark arts practiced by the Vice President) has been to torture the fuck out of arrestees and then shuffle them off to a judicial system that pays no attention to little things like the constitution and due process. Human beings are tortured, interrogated, held without charge or trial for decades and all without counsel. We know this because our President took great pride in doing it. That policy continues to this day.
Clearly there is insurmountable evidence that the current arrestee and accused is likely one of the Boston bombers. We need a trial to sort this out but I will go along with the government’s case for the sake of discussion. If that is true and there is already an indictment, we have to assume that prosecutors have a pretty strong case.
So why keep interrogating this person in violation of his Miranda warnings? Why “mirandize” him at all? Well since the only risk to law enforcement is the inadmissibility of the statements and they already have a strong case, they probably don’t need any information the accused will tell them. But the information revealed can have vast intelligence and other more clandestine applications outside securing a conviction. They don’t want the information for the court room battlefield; they want it for the global one.
For that reason – intelligence gathering – investigators will blow off a person’s rights because their goals are not pleasuring the criminal justice system or paying any homage to the constitution and the law. We are dealing with zealots, warriors, and they are going to get their information by any means possible. It matters not whose rights are scrambled and whose life will be destroyed.
So this whole ‘mirandize the boston bomber’ issue is really not. It is puffery and alarmist behavior by the media. In the real world, it is irrelevant. I would be more concerned about how he is going to be treated after he heals and is released from the hospital. But then again, he should have considered that before he brought about such pain and suffering upon the nation that took him in, fed him, housed him, educated him, and kept him safe from bombs going off in his homeland.