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

[NaTaS+ 958]

via The Guardian

 

 

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.

 

As law school dean Erwin Chemerinsky explained in the Los Angeles Times last week, the Obama DOJ was already abusing the "public safety" exception by using it to delay Miranda warnings for hours, long after virtually every public official expressly said that there were no more threats to the public safety. As he put it: "this exception does not apply here because there was no emergency threat facing law enforcement." Indeed, as I documented when this issue first arose, the Obama DOJ already unilaterally expanded this exception far beyond what the Supreme Court previously recognized by simply decreeing (in secret) that terrorism cases justify much greater delays in Mirandizing a suspect for reasons well beyond asking about public safety.

 

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 (b) 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).

 

 

I find myself so torn by this issue. On one hand, I want this guy to suffer and I want every last piece of information squeezed from him so we can understand the entire scope of the bombers intentions. One the other hand, what separates us from the animals and other cruel government (You know, we claim such a moral high ground) is our demand for justice, that we deal with criminals fairly and ethically. How are we any better than places like Afganistan, N Korea or any of the other governments ran by the cruel unless we show we can deal with evil with goodness?

[blotsfan 2,112]

This is 100% wrong and shameful. Any information given during the talks should be struck from the record.

[Bucman 891]

I'm still waiting on the FBI to tell us about the 2 other guys with back packs @ the event and the repeated explosions people complained about before the bombs went off. O and about those photos again, the FBI is trying to get them blacklisted on the internet.

[Phins4life 271]

NaTas nailed the sentiment for me at least. I hate people like this. We either play the same hardball as our enemies, or we stick to the ground rules we set for ourselves.

[OSUViking 505]

He's a US citizen. No matter how heinous his acts were, he deserves the rights of an American citizen.

[Guest Phailadelphia]

I stand in the same place as everyone else here but let's step back a minute and make sure the allegations are true first. This was first reported today by the LA Times and by an anonymous source. Until multiple sources verify that his 6th amendment rights are being violated or the DOJ responds, I'm going to hold my tongue.

[.AirMcNair. 1,232]

Can't really find it in me to give a shit after what he did. If there were ANY chance he was innocent, even a 0.01% chance, sure. But given we all KNOW what he did, and are absolutely positive about it, I could really care less about his rights.

 

He lost his rights when he decided to blow up a group of innocent people, start a shootout with cops/kill a cop, and cause an entire city to go on lockdown and lose, what was it, 300+ million dollars in revenue?

 

I'm still of the belief a bullet should be put in his head and just save everyone the time, effort and money it will take to continue interrogating/questioning him/to put him at trial/etc. A crime this heinous should be punishable by no less. People shouldn't get the image that they can blow some people up, shoot at innocent people, including police, cause an entire city to go on lockdown and require the god knows how many cops/agents/etc to devote their time and risk their safety to looking for him, then just surrender and get 3 meals and a bed to sleep in for the rest of their life. American citizen or not. You're no longer an American when you commit such a crime against your fellow people.

 

But sure, whatever. Give him his trial, let him go to jail and get free meals and a free place to sleep for the next 60 years or however long he lives. That works too.

[NaTaS+ 958]

Can't really find it in me to give a shit after what he did. If there were ANY chance he was innocent, even a 0.01% chance, sure. But given we all KNOW what he did, and are absolutely positive about it, I could really care less about his rights.eep for the next 60 years or however long he lives.

 

 

See for me I don't give a shit about him at all. He's essentially an example in this scenario. It's more about the US, our reputation, our morality. Do we do what is right and do we do it all the time or only when it's convenient? Are we hypocritical when we accuse other countries of violating human rights while we have a torture prison or skirt the law when it serves our interests?

 

This fucknugget and burn in hell (If there is a hell) or rot in prison for all I care. I just want to be sure we're doing the right thing.

 

 

[.AirMcNair. 1,232]

See for me I don't give a shit about him at all. He's essentially an example in this scenario. It's more about the US, our reputation, our morality. Do we do what is right and do we do it all the time or only when it's convenient? Are we hypocritical when we accuse other countries of violating human rights while we have a torture prison or skirt the law when it serves our interests?

 

This fucknugget and burn in hell (If there is a hell) or rot in prison for all I care. I just want to be sure we're doing the right thing.

 

We've never always "done what's "right"".

 

People who have that image of our country are delusional. We're better off than a lot of other countries in that regard, I'm sure, but we aren't saints. We don't follow our own rules...but my post really isn't even about that.

 

He shouldn't be given the rights of an American citizen. I don't view him as one. No one should be viewed as one after doing something similar to/what he did.

[blotsfan 2,112]

We've done bad things before, do that justifies us doing more bad things.

-Airmcnair

[.AirMcNair. 1,232]

We've done bad things before, do that justifies us doing more bad things.

-Airmcnair

 

Us "doing bad things before" has nothing to do with my point in regards to this sad excuse for a human being, nor is what I'm suggesting what we do to this "man" a bad thing what so ever.

 

My point is he should no longer be considered an American citizen, and does not deserve our tax payers money to give him a life where he'll never go hungry, will always have a roof over his head and a bed to sleep in, when we've got innocent, ACTUAL Americans who are starving, homeless, etc.

 

Anyone who would disagree with that has some serious mental issues.

[Zack_of_Steel+ 3,014]

I'm not in favor of taking away his rights or killing him on grounds that he is a terrorist, but only because of the precedent that Obama and his administration have set with the NDAA, Eric Holder's comments, and Executive Order 13603. I'll repost my previous thoughts on these in spoiler tags.

 

 

Everyone hated Bush and his Patriot Act and such (and rightfully so, fuck Bush). Obama promised to only reform the Patriot Act rather than repeal it, but couldn't even do that. In fact, he has extended the Patriot Act multiple times and even increased the timetable to 2013 to ensure that it wouldn't be an election year issue.

 

Obama then signed the National Defense Authorization Act, which puts domestic terrorism charges in the hands of the military and allows ANYONE, including American citizens, to be held indefinitely without trial. All the gubbernment has to do is deem you a terrorist threat and they can sweep you off your feet and ship you off to jail. Guantanamo Bay sound nice (why is it still open again? Oh, right, another broken promise)? Good, because if you piss off dat government, they're liable to drop you off there legally and as long as they see fit.

 

In this same vein, Obama's Attorney General Eric Holder made it well known that if the government deems a U.S. citizen a terrorist leader, they are within legal right to kill said citizen, again, without trial. Sure, these anti-terrorism measures may allow for the prevention of terrorism in some extreme cases, but in a largely corrupt system, is no one else worried about their eminent abuse?

 

Obama also issued Executive Order 13603. In the face of an ambiguous "National Defense Emergency" (a clarification would have been nice, but vagueness plays into the government's hands), this Order gives the President complete authority over water, food, fuel, transportation, hospitals, and construction materials.

 

 

We cannot willingly allow Dzhokhar Tsarnaev to have his rights infringed upon while citing the "terrorist" label because that would be telling the government that we approve of the government exercising civil liberty atrocities on anyone they say is a terrorist. We already know of the government's track record when they're really trying to catch terrorists (Guantanamo Bay) and we've let that go on.

 

We gained a lot of ground when Rand Paul filibustered and got the administration to reverse course on drone strikes on Americans on American soil without due process. We cannot give that ground back to them by allowing this to happen in Tsarnaev's case, whether we know he is guilty or not. The past two Presidential administrations have poked and prodded at us to test the waters and find out just how much of our freedom they can expropriate and the more we let them, the worse it gets.

Edited May 1, 2013 by Zack_of_Steel

[OSUViking 505]

Who was it that commented on giving up freedom in exchange for security? I can't remember and can't be assed to go look it up. Anyway, it applies today. It's pathetic, but it's our reality.

[Sarge+ 3,436]

Who was it that commented on giving up freedom in exchange for security? I can't remember and can't be assed to go look it up. Anyway, it applies today. It's pathetic, but it's our reality.

 

"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin, Historical Review of Pennsylvania, 1759.

[CARDINAL 205]

"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin, Historical Review of Pennsylvania, 1759.

 

A real visionary Benjamin Franklin was, his rock solid commitment to what he really believed in would be a welcome addition to any politician today.

 

Denying Tsarnaev his rights that are clearly spelled out in the Constitution only gives the Islamic Terrorists a victory because it gives a greater detail of validity to their propaganda that America and Americans hate Islam and Muslims.

[OSUViking 505]

"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin, Historical Review of Pennsylvania, 1759.

 

Just want to mention this... I was debating with my sister how Obama had fucked up with the signing into law of the NDAA. She went off on a tangent on how he didn't have as much power as people claim he does, and I brought up the fact that he had the power to veto its passage. We get to the point where she says, "He can't do that because then Congress won't do anything. He certainly can't rely on the voters to get those Congressmen out of office because they want terrorists gone too."

 

It was when she said this that I mentioned this Franklin quote. You want to know how she responded? "The Founding Fathers have no relevance today. Bringing up what they said 300 years ago is pointless."

 

Bout slapped a ho, yo.

[blotsfan 2,112]

I'm not going to go so far as to say the founding fathers were irrelevant but I do think they aren't as important As made out to be. Obviously there is more valid reasoning for that quote than just the fact that Ben Franklin said it, but I think in general simply saying "because the founding fathers said/felt this" is not enough of an argument and I would say weakens your point.

[OSUViking 505]

The point that I was bringing up has total relevance to what Franklin said. It would have total relevance regardless of who said it. I agree that too much emphasis is put on the Founding Fathers, but to outright say that they are irrelevant in today's political atmosphere is a bit too far (IMO).

[Guest Phailadelphia]

I'm not going to go so far as to say the founding fathers were irrelevant but I do think they aren't as important As made out to be. Obviously there is more valid reasoning for that quote than just the fact that Ben Franklin said it, but I think in general simply saying "because the founding fathers said/felt this" is not enough of an argument and I would say weakens your point.

 

Agreed. "I can't think for myself, so here's an argument from a dude who has been dead for a long time" is not very convincing.

[NaTaS+ 958]

I'm not going to go so far as to say the founding fathers were irrelevant but I do think they aren't as important As made out to be. Obviously there is more valid reasoning for that quote than just the fact that Ben Franklin said it, but I think in general simply saying "because the founding fathers said/felt this" is not enough of an argument and I would say weakens your point.

 

 

 

You're joking, right?

 

To say that the founding fathers are not important or somehow less important than the great men and visionaries that most see them as, is ludicrous. The man Sarge quoted, in particular, was Benjamin Franklin. Not only was he a visionary, but also an inventor and entrepreneur - a polymath. I think attribution to influential figures makes it carry much more weight than if it was simply said by John Doe.

 

Now, the way the quote has come down to us is a little different than the original meaning. That doesn't matter, the words are meaningful to us today.

 

http://www.lawfarebl...in-really-said/

 

Franklin was writing not as a subject being asked to cede his liberty to government, but in his capacity as a legislator being asked to renounce his power to tax lands notionally under his jurisdiction. In other words, the "essential liberty" to which Franklin referred was thus not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security.

 

What's more the "purchase [of] a little temporary safety" of which Franklin complains was not the ceding of power to a government Leviathan in exchange for some promise of protection from external threat; for in Franklin's letter, the word "purchase" does not appear to have been a metaphor. The governor was accusing the Assembly of stalling on appropriating money for frontier defense by insisting on including the Penn lands in its taxes—and thus triggering his intervention. And the Penn family later offered cash to fund defense of the frontier—as long as the Assembly would acknowledge that it lacked the power to tax the family's lands. Franklin was thus complaining of the choice facing the legislature between being able to make funds available for frontier defense and maintaining its right of self-governance—and he was criticizing the governor for suggesting it should be willing to give up the latter to ensure the former.

 

In short, Franklin was not describing some tension between government power and individual liberty. He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade.

 

 

Edited May 5, 2013 by NaTaS

[NaTaS+ 958]

Agreed. "I can't think for myself, so here's an argument from a dude who has been dead for a long time" is not very convincing.

 

It's drawing a parellel to events that happened in the past. That should not be taken to mean that one cannot think for themselves if they quote influential historical figures.

[Guest Phailadelphia]

It's drawing a parellel to events that happened in the past. That should not be taken to mean that one cannot think for themselves if they quote influential historical figures.

 

I'm commenting more towards those who quote historical figures and base their arguments on those quotes rather than build their own case and use the quotes for support (with which I have no issue).

 

It's like the free speech debate we're having regarding Westboro in the other thread. Everyone has expressed the "constitutional right" of Westboro to say what they want but it doesn't tell us anything about the intrinsic value of speech. It's a weak argument.

[SteelersNation36 128]

I tried skimming through other posts and didn't see it but honestly if someone came to you as a lawyer and was like "Ya uhhh you're representing the guy who bombed the marathon" How could you do it. Do public defenders have to take an oath to be one or what?

[blotsfan 2,112]

Defense lawyers are strong supporters in the idea of everyone deserving representation, no matter what.

 

Plus, they like money.

[seanbrock 1,684]

I'm commenting more towards those who quote historical figures and base their arguments on those quotes rather than build their own case and use the quotes for support (with which I have no issue).

 

It's like the free speech debate we're having regarding Westboro in the other thread. Everyone has expressed the "constitutional right" of Westboro to say what they want but it doesn't tell us anything about the intrinsic value of speech. It's a weak argument.

Violating somebodies right to freedom of speech is a dangerous legal precedent to start. The way things are headed we're going to have drones patrolling the streets. Everybody's phone calls will tapped and anyone who says anything that the government doesn't like is either executed by a drone thrown in jail in indefinitely without charges or right to due process. I know that might all sound far fetched but with the way things are going right now, we could wake up 20 years from now and this COULD be the reality we're faced with.

 

Read the book A Brave New World and see how much of what was predicted in that book like 75 years ago. Those were crazy ideas back then.