Report: Dzhokhar Tsarnaev's repeated requests for a lawyer were ignored

[AdamSmith]

Report: Dzhokhar Tsarnaev's repeated requests for a lawyer were ignored

There is zero legal or ethical justification for denying a suspect in custody this fundamental right

• • Glenn Greenwald
  • guardian.co.uk, Monday 29 April 2013 14.43 EDT

(updated below - Update II [Tues.])

The initial debate over the treatment of Dzhokhar Tsarnaev focused on whether he should be advised of his Miranda rights or whether the "public safety exception" justified delaying it. In the wake of news reports that he had been Mirandized and would be charged in a federal court, I credited the Obama DOJ for handling the case reasonably well thus far. As it turns out, though, Tsarnaev wasn't Mirandized because the DOJ decided he should be. Instead, that happened only because a federal magistrate, on her own, scheduled a hospital-room hearing, interrupted the FBI's interrogation which had been proceeding at that point for a full 16 hours, and advised him of his right to remain silent and appointed him a lawyer. Since then, Tsarnaev ceased answering the FBI's questions.

But that controversy was merely about whether he would be advised of his Miranda rights. Now, the Los Angeles Times, almost in passing, reports something which, if true, would be a much more serious violation of core rights than delaying Miranda warnings - namely, that prior to the magistrate's visit to his hospital room, Tsarnaev had repeatedly asked for a lawyer, but the FBI simply ignored those requests, instead allowing the interagency High Value Detainee Interrogation Group to continue to interrogate him alone:

"Tsarnaev has not answered any questions since he was given a lawyer and told he has the right to remain silent by Magistrate Judge Marianne B. Bowler on Monday, officials said.

"Until that point, Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule."

Delaying Miranda warnings under the "public safety exception" - including under the Obama DOJ's radically expanded version of it - is one thing. But denying him the right to a lawyer after he repeatedly requests one is another thing entirely: as fundamental a violation of crucial guaranteed rights as can be imagined. As the lawyer bmaz comprehensively details in this excellent post, it is virtually unheard of for the "public safety" exception to be used to deny someone their right to a lawyer as opposed to delaying a Miranda warning (the only cases where this has been accepted were when "the intrusion into the constitutional right to counsel ... was so fleeting – in both it was no more than a question or two about a weapon on the premises of a search while the search warrant was actively being executed"). To ignore the repeated requests of someone in police custody for a lawyer, for hours and hours, is just inexcusable and legally baseless.

But that debate was merely about whether Tsarnaev would be advised of his rights. This is much more serious: if the LA Times report is true, then it means that the DOJ did not merely fail to advise him of his right to a lawyer but actively blocked him from exercising that right. This is a US citizen arrested for an alleged crime on US soil: there is no justification whatsoever for denying him his repeatedly exercised right to counsel. And there are ample and obvious dangers in letting the government do this. That's why Marcy Wheeler was arguing from the start that whether Tsarnaev would be promptly presented to a federal court - as both the Constitution and federal law requires - is more important than whether he is quickly Mirandized. Even worse, if the LA Times report is accurate, it means that the Miranda delay as well as the denial of his right to a lawyer would have continued even longer had the federal magistrate not basically barged into the interrogation to advise him of his rights.

I'd like to see more sources for this than a single anonymous Congressional aide, though the LA Times apparently concluded that this source's report was sufficiently reliable. The problem is that we're unlikely to get much transparency on this issue because to the extent that national politicians in Washington are complaining about Tsarnaev's treatment, their concern is that his rights were not abused even further:

"Lawmakers were told Tsarnaev had been questioned for 16 hours over two days. Injured in the throat, he was answering mostly in writing.

"'For those of us who think the public safety exemption properly applies here, there are legitimate questions about why he was [brought before a judge] when he was,' said Rep. Adam B. Schiff (D-Burbank), a former federal prosecutor who serves on the House Intelligence Committee.

"Rep. Mike Rogers (R-Mich.), chairman of the committee, wrote Atty. Gen. Eric H. Holder Jr. asking for a full investigation of the matter, complaining that the court session 'cut off a lawful, ongoing FBI interview to collect public safety information.'"

So now the Washington "debate" is going to be whether (a) the Obama DOJ should have defied the efforts of the federal court to ensure Tsarnaev's rights were protected and instead just violated his rights for even longer than it did, or ( the Obama DOJ violated his rights for a sufficient amount of time before "allowing" a judge into his hospital room. That it is wrong to take a severely injured 19-year-old US citizen and aggressively interrogate him in the hospital without Miranda rights, without a lawyer, and (if this report is true) actively denying him his repeatedly requested rights, won't even be part of that debate. As Dean Chemerinsky wrote:

"Throughout American history, whenever there has been a serious threat, people have proposed abridging civil liberties. When that has happened, it has never been shown to have made the country safer. These mistakes should not be repeated. Dzhokhar Tsarnaev should be investigated, prosecuted and tried in accord with the US Constitution."

There is no legal or ethical justification for refusing the request for someone in custody to have a lawyer present. If this report is true, what's most amazing is not that his core rights were so brazenly violated, but that so few people in Washington will care. They're too busy demanding that his rights should have been violated even further.

UPDATE

In March of last year, the New York Times' Editorial Page Editor, Andrew Rosenthal - writing under the headline "Liberty and Justice for Non-Muslims" - explained: "it's rarely acknowledged that the [9/11] attacks have also led to what's essentially a separate justice system for Muslims." Even if you're someone who has decided that you don't really care about (or will actively support) rights abridgments as long as they are applied to groups or individuals who you think deserve it, these violations always expand beyond their original application. If you cheer when Dzhokhar Tsarnaev's right to counsel is denied, then you're enabling the institutionalization of that violation, and thus ensuring that you have no basis or ability to object when that right is denied to others whom you find more sympathetic (including yourself).

UPDATE II [Tues.]

For those who are still having trouble comprehending the point that objections to rights violations are not grounded in "concern over a murderer" but rather concern over what powers the government can exercise - just as objections to the US torture regime were not grounded in concern for Khalid Sheikh Mohammed - perhaps the great American revolutionary Thomas Paine can explain the point, from his 1795 A Dissertation on the First Principles of Government:

"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

That's the same principle that led then-lawyer-and-revolutionary John Adams to vigorously defend five British soldiers (of the hated occupying army) accused of one of the most notorious crimes of the revolutionary period: the 1770 murder of five colonists in Boston as part of the so-called Boston Massacre. As the ACLU explained, no lawyers were willing to represent the soldiers because "of the virulent anti-British sentiment in Boston" and "Adams later wrote that he risked infamy and even death, and incurred much popular suspicion and prejudice."

Ultimately, Adams called his defense of these soldiers "one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country." That's because Adams understood what Paine understood: if you permit the government to trample upon the basic rights of those whom you hate, then you're permitting the government to trample upon those rights in general, for everyone.

This is not a platitude they were invoking but an undeniable historical truth. Governments know that their best opportunity to institutionalize rights violations is when they can most easily manipulate the public into acquiescing to them by stoking public emotions of contempt against the individual target. For the reasons Paine and Adams explained, it is exactly in such cases - when public rage finds its most intense expression - when it is necessary to be most vigilant in defense of those rights.

http://www.guardian.co.uk/commentisfree/2013/apr/29/tsarnaev-right-to-counsel-denied

[RA1]

I cannot imagine that the current or recently past administration is other than culpable for these insults. The Congress does not get a free pass either.

Unlike my mind which since it has gone was not very much missed by me, I very much miss the civil liberties being usurped by the current Washington crowd.

Best regards,

RA1

[Guest hitoallusa]

I want efficiency with accuracy in this kind of investigation. In order to do that public safety exemption is necessary. However, I don't know why a counsel could not be present to protect the suspect's rights and to ensure fair treatment of the suspect. After a lawyer is provided not to silence one's client but look out for the best interst for the client.

On the the other hand what if a lawyer present doesn't provide his best service since he doesn't like the suspect and have already convicted in his heart that the suspect is the bomber. I guess it complicates things.

[TampaYankee]

I too decry the erosion of our rights and liberty as reflected in parts of the Patriot Act and other 'modern' statues. I'm very serious when I say this.

On the other hand, I really cannot see any sensible practical person getting his panties in a bunch over this narrow issue. This is where flaming liberals go overboard forsaking common sense for pure ideals scripted by men of ideals in an impure world. These principles are guideposts meant to point the direction that our actions should take. But they do not exist in some vacuum or a rarified atmosphere on Mt Olympus. They exist in a real world that has some life and death issues.

Mr. Greenwald holds that it is one thing to hold back the Miranda warning and quite another to hold back access to an attorney. I submit that if they are not one and the same then they are effectively equivalent, to any thinking person. If the attorney gains access to the client then the first thing he will do is to Mirandize the client himself. Quo erat demonstratum!! That defeats the Public Safety Exception instantly. Can anyone argue otherwise?

Now, about all the wailing and gnashing of teeth about the Public Safety Exception. We are a nation that reveres individual rights while at the same time recognizing importance of the well being of our country and public community. There are times when these come into conflict. Circumstances and costs must be weighed to determine how the scales must tilt to best represent the tension between these principles.

I believe a clear and compelling case was apparent that the Public Safety Exception (PSE) was warranted. The limits of that exception are pretty straightforward in principle if not so in applying it. However, the test is really quite simple. Was the information elicited of a nature to determine public safety or to establish guilt for a person's actions. The former is permitted and the latter is not. My understanding of the PSE is that information is elicited only for the purpose of establishing public safety and thus cannot be used at trial to present guilt.

Some might say there is overlap. Possibly true. But what is elicited under the PSE may not be used for trial of that defendant. It must be established in some clearly independent way.

Interviewers may stray from the permitted question in their zeal to make a case. If so then that is to their detriment as the defendant would seek to have that information disqualified. That would be a stupid ploy in the interrogator's part. There are checks and balances. There must be in order for the PSE to have any legitmacy. The SOTUS has ruled so. Thus the SOTUS and lower courts along with the defendant attorney are those checks and balances.

[RA1]

TY-

Some of what you write could have been written by me or I could have been accused of same.

So, your understanding of the PSE would be the same as testimony elicited previous to a suspect being Mirandized will not be permitted in a court of law and in fact may be grounds for dismissal of the charges as we have seen post Miranda? I realize you didn't quite say that but I think that a logical conclusion.

I have never thought of Miranda as allowing authorities to ask anything of a suspect except as pertains to a crime or crimes being investigated. In other words, if a suspect is thought to have broken in last night and attacked a home owner he can be asked about a murder 10 years ago pre-Miranda? That seems to be similar to what is being suggested about PSE. I suppose I would have to know more about what kind of questions and how they would apply to any particular situation before I would buy off on that concept.

My thoughts about Miranda are that it is a safeguard in place to make sure that a suspect has access to an attorney so that he can get advice about his legal options. There are a lot of potential slippery slopes out there with Miranda. I don't see PSE as being other than fraught with them also or worse.

Best regards,

RA1

[TampaYankee]

TY-

Some of what you write could have been written by me or I could have been accused of same.

So, your understanding of the PSE would be the same as testimony elicited previous to a suspect being Mirandized will not be permitted in a court of law and in fact may be grounds for dismissal of the charges as we have seen post Miranda? I realize you didn't quite say that but I think that a logical conclusion.

I have never thought of Miranda as allowing authorities to ask anything of a suspect except as pertains to a crime or crimes being investigated. In other words, if a suspect is thought to have broken in last night and attacked a home owner he can be asked about a murder 10 years ago pre-Miranda? That seems to be similar to what is being suggested about PSE. I suppose I would have to know more about what kind of questions and how they would apply to any particular situation before I would buy off on that concept.

My thoughts about Miranda are that it is a safeguard in place to make sure that a suspect has access to an attorney so that he can get advice about his legal options. There are a lot of potential slippery slopes out there with Miranda. I don't see PSE as being other than fraught with them also or worse.

Best regards,

RA1

I would go with 'statements' rather than testimony, which, to my mind, is a more formal presentation of information. But yes, the information obtained prior to Miranda would be limited to PSE application. Any attempt to use said information for trial purposes would be disqualified. As for grounds for dismissal, IMO a violation of Miranda, per se, is never grounds for dismissal. Any dismissal would depend solely on the sufficiency of qualified information available at trial. So, even if Miranda was violated but there exists sufficient untainted information/evidence to proceed with a trial, then full speed ahead. None of that violates the defendant's right to a fair trial. If the Miranda-tainted information is not presented at trial then ho harm - no foul.

All of the above assumes that the 'defendant' was a target of investigation. Otherwise, if he was just being interviewed as a person who might have knowledge of an incident and during that interview it became apparent from his statements that he might be a target of investigation then the authorities must stop to notify him that he may be the target of an investigation and Mirandize him. All of that assumes there is no PSE angle to the case. If there is then the authorities must decide whether they wish to pursue the PSE aspect or the criminal action aspect and make a decision with Miranda depending on their direction of pursuit.

If I understand your second point about inquiring into older crimes while investigation a current one, then I think I do not agree. It all comes down to whether the person to be questioned is a 'target' or possible target of the investigation. If he is a target of the present crime investigation then he is Mirandized. If he is a target of the investigation of an older crime then he must be Mirandized. If he is not a target of the older crime but becomes a possible suspect as fall out from the new crime investigation then he must be Mirandized immediately when that is established. In either case, once a person becomes a target of investigation then he must be Mirandized if he is questioned.

The principle of Miranda is to inform a suspect or potential suspect of his Constitutional Rights before he is questioned so that he may exercise his rights if he wishes. Of course the authorities are free to ask all the questions about a ten year old crime they wish without Miranda. But if those questions go to establishing the participation in a crime or guilt of that person then the statements and fruit of those statements most probably will be excluded before trial or upon appeal.

I share your view that Miranda is to notify the suspect that he has the right of access to an attorney, either privately or publicly. But more so, also it informs the suspect of his right against self-incrimination. That is the way I see it.

[RA1]

Thanks for the reply. Likely I was not as clear as I would have liked to have been but my point about previous crimes was the one you made, namely if a person is being investigated for any crime he should be Mirandized, not just last night's possible crime.

One of the possible slippery slopes is determining when an interviewee becomes a suspect.

I think the PSE could have a very similar slippery slope.

When Miranda first became the law of the land I was a bit appalled in that I thought it gave criminals very much the upper hand. Now I tend to view it as a necessary protection from the government which has lost a lot of my respect over the years. Maybe I should say mainly politicians have lost almost all of my respect.

Best regards,

RA1

[TampaYankee]

Thanks for the reply. Likely I was not as clear as I would have liked to have been but my point about previous crimes was the one you made, namely if a person is being investigated for any crime he should be Mirandized, not just last night's possible crime.

One of the possible slippery slopes is determining when an interviewee becomes a suspect.

I think the PSE could have a very similar slippery slope.

When Miranda first became the law of the land I was a bit appalled in that I thought it gave criminals very much the upper hand. Now I tend to view it as a necessary protection from the government which has lost a lot of my respect over the years. Maybe I should say mainly politicians have lost almost all of my respect.

Best regards,

RA1

I agree there is some potential for a slippery slope but I also believe the nature of the questions is most often telling as to the purpose. Especially to the pros like attorneys and judges. The suspect may be clueless for a while but not the pros when they review what happened