Commentary: In the Name of Safety…


SupremeCourtPerhaps it is the long and destructive decade in the war on terror, but there is a marked shift in public opinion.  Pollsters note that, following the 1995 bombing in Oklahoma City and the 9/11 attacks on the World Trade Center and the Pentagon, the public responded to those attacks with a willingness to give up liberties in exchange for security measures.

Since then we have seen wiretapping, indefinite detentions, and of course the decade-long wars in Afghanistan and Iraq.  In the wake of the most recent “terrorist” attack on the Boston Marathon, the public has responded differently.

Polling showed a modest uptick in the percentage of the public worried that they or family members would become a victim of terrorism.  Nearly two-thirds of those polled believe that terrorists will find a way to launch a major attack on the US no matter what the US Government does, versus 32 percent who believe the government can prevent attacks.

But most notably, when asked, “What concerns you more right now?  That the government will fail to enact strong, new anti-terrorism policies, or that the government will enact new anti-terrorism policies which excessively restrict the average person’s civil liberties,” the response was stunning.  Only 31 percent responded that the government will fail to enact new anti-terrorism policies and 61 percent were more concerned that the new policies would restrict civil liberties.

“After 9/11, 54 percent of Americans favored expanded government monitoring of cellphones and email. Now, the message is ‘hands off,’ ” said CNN Polling Director Keating Holland. “Only 38 percent favor expanding government monitoring of those forms of communication.”

Despite this strong public response against the encroachment on civil liberties, the US Government did not just utilize the public safety exemption to Miranda, as was debated recently – they outright violated the defendant’s right to an attorney.

Last week, the furor was over the fact that Federal Magistrate Judge Marianne Bowler went to the hospital and convened a court hearing in the hospital room of the accused bombing suspect, Dzhokhar Tsarnaev, about 16 hours after a complaint was filed in her court.

“Her reading of the Miranda warning came as part of the formal presentation of charges to the suspect, an act that would have in normal circumstances taken place in a courtroom,” the AP reported.  “Federal rules of criminal procedure require that defendants appear before a judge without unnecessary delay – usually defined as within one business day.”

The AP reported that Judge Bowler was the first to advise the suspect of his Miranda rights to remain silent and, according to officials cited in the AP’s report, he stopped talking to investigators after being read his rights.

House intelligence committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday that “justice officials should have pushed back on the judge’s plans. He wrote to Attorney General Eric Holder late Wednesday to register his concerns,” the AP said.

“What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively, they may have jeopardized our ability to get public-safety information.”

Now comes word in a Los Angeles Times report that, according to “a senior congressional aide,” “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.”

As UC Davis Law Professor Gabriel “Jack” Chin explained to the Vanguard, “The public safety exception… says that if the police are asking questions that deal with a matter of immediate public safety such as a gun in a public place they can have their cake and eat it too by asking the questions of somebody who’s subject to custodial interrogations and using the statements later.”

In other words, he said, they want to use the statements both as information to be able to locate potential hazards to public safety, while at the same time keeping the door open to use those statements as admissions.

But as Gideon, who writes the “A public defender” blog and is, in fact, a public defender, notes, the exception to Miranda “is an exception to telling someone of their rights. It cannot make that right disappear. The Quarles exception says ‘we don’t have to tell you of your rights,’ but those rights still exist.”

So the federal government went a step further – they did not just decline to tell Mr. Tsarnaev his rights, they denied his express request to have an attorney.

In an interview with CNN, US Attorney General Eric Holder defended the actions of the Justice Department and how the FBI handled the pre-Miranda interrogation.  As reported by CNN, “When asked about the timing of the Miranda rights, Holder told CNN’s Brianna Keilar on Saturday night that the decision, made by the magistrate, was ‘totally consistent with the laws that we have … We have a two-day period to question him under the “public safety” exception. So I think everything was done appropriately, and we got good leads,’ he said.”

Slate‘s Emily Bazelon argued that she’s “worried about how far the Obama administration’s Justice Department has stretched the limited ‘public safety’ exception the Supreme Court has allowed for questioning suspects about ongoing danger without Miranda warnings, 16 hours sounds expansive.”

The Fifth Amendment here is rather explicit, that no person… “shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; […].”

This is critical, the Supreme Court in its Miranda ruling warned, because “[t]he circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.”

Gideon argues, “The outrage emanating from every corner of this great nation should be deafening. We should be pounding down the doors of our elected representatives, demanding that they pledge never to so abuse our rights again. Because if we don’t today, tomorrow they’ll take away more.”

The reality is clearly more mixed.  The public is at least concerned about their own liberties being curtailed, which is a step in the right direction, but the lack of empathy for the plight of Mr. Tsarnaev illustrates that people fail to recognize that the danger is liberties, and shortcuts taken in this case will have an impact on their own rights down the road.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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16 thoughts on “Commentary: In the Name of Safety…”

  1. Growth Izzue

    [quote]So the Federal Government went a step further, they did not just decline to tell Mr. Tsarnaev his rights, they denied his express request to have an attorney.[/quote]

    And you know this how? Don’t tell me because of “Now comes word in a Los Angeles Times report that according to “a senior congressional aide” who is [b]unnamed[/b]. Aren’t you taking a huge leap on an anomynous source?

  2. JustSaying

    The odds that someone will be the target if a successful terrorist attack are about the same as those that a country will be able to avoid any attacks–slim to none.

    Why do we think that spending billions, giving up our own freedoms and rights, waging war against other countries, killing thousands of innocents, torturing people, etc., are appropriate or even helpful responses even to something as horrendous as the 3,000 deaths in New York or the Boston bombing?

    And, why do we have our politicians speaking out in ignorance within a day of an event like the embassy attack or marathon explosion, then following up with misleading daily criticisms of how authorities (or, as they say, “this administration”) supposedly are handling things. When did we should be getting our information about such things from Rogers, McCain, Romney, Graham, Ayotte, Issa rather than the people who know what’s going on?

  3. Growth Izzue

    If you want the Vanguard to be more creditable I think in the future when you report stories from anonymous sources instead of claiming them as fact you should start your sentence with:

    [b]If this anonymous source is correct [/b]”the Federal Government went a step further, they did not just decline to tell Mr. Tsarnaev his rights, they denied his express request to have an attorney.

    By the way, since when is the LA Times a reputable source?

  4. David M. Greenwald

    We’re still at the same point – I have no reason to disbelieve their report, you have cited no reference that disputes its accuracy, and I found none, therefore for the purposes of my commentary, I have used the source.

  5. JustSaying

    “In general, if a reputable source reports something and the information is not disputed, I tend to believe it.”

    I agree with Growth Izzue’s caution. An anonymous, “senior congressional aide” being quoted by a newspaper hardly is “a reputable source.” It may be good enough for rushed story, but not enough to build conclusions for effective criticism.

    The amount of Boston misinformation being passed along by supposedly reputable sources (anonymous and otherwise) has been incredible. The fact that the FBI doesn’t respond to every report and dispute every charge during investigations should not be relied upon as testimony to the truth of every media report.

    Even more irritating and surprising is the recent practice of legislators (like Rogers) and news analysts using such questionable reports to play FBI investigator or President. Can’t they just shut up until they actually have accurate information on which to base their purposeless speculation and criticism?

  6. David M. Greenwald

    Just Saying:

    Let me start with, this, I think you raise reasonable points – I too am staggered by the amount of misreporting. I too think we need to regard reports and anonymous sourcing with healthy skepticism.

    That said, I don’t think it should become blanket disavowal of all sources.

    The best check we have is competitive reporting.

    The publication date on that report is a week old, it’s a staggering allegation, and no one has refuted it.

    So should we disregard the allegation because it came from an unnamed source? I see no reason to do that unless someone gives me a reason – and in this case that would be an official report denying the information.

  7. Mark West

    David Greenwald: “[i]So should we disregard the allegation because it came from an unnamed source?[/i]”

    Obviously, there are times when anonymous sources are all we have to go on. To maintain credibility, there is a responsibility on the part of the reporter to either have personal knowledge that the source is credible and/or have confirmation of the information (or a part thereof) from an independent source(s).

    David, I assume that you have no personal knowledge of the credibility of the source used in the LA times article, and you have not indicated that you have independently confirmed the claim. The lack of public denial of the claim is not in any way a confirmation of the original allegation.

    Has there been any reporting from an independent source to confirm the allegation? If not, then all you are doing by repeating it here is to spread an unconfirmed allegation, or in other words, rumor-mongering.

    So in answer to your question above, until you have, or can cite, independent confirmation of the claim, yes, you should disregard the allegation (unless of course you don’t care if the Vanguard is viewed as credible).

  8. David M. Greenwald

    Let me get this straight – the LA Times, who have a pretty strict policy on use of anonymous sources, prints a story using an unnamed source. Most people, other than Growth izzue apparently would consider the LA Times as credible. But my credibility is in question for using their report as a source in my commentary? Really?

  9. JustSaying

    “So the federal government went a step further – they did not just decline to tell Mr. Tsarnaev his rights, they denied his express request to have an attorney.”

    “So should we disregard the allegation because it came from an unnamed source?”

    “So we’re outraged about the use of anonymous sources rather than the infringement on our liberties?

    Nobody’s saying disregard the unnamed source’s claim (it may end up being confirmed as true), and nobody’s outraged about the Times using anonymous sources (certainly not to the exclusion of considering the important issues under discussion).

    We are suggesting that a single anonymous aide from the bowels of Congress, a well-known breeding ground for sources with agendas, shouldn’t be the lone basis for the “express request” denial conclusion.

    I think it wouldn’t hurt to wait to post mortem this matter until the claim is corroborated by those who were there or, at least, stated by someone who will speak on the record.

    I think Mr. or Ms. Izzue is suggesting even less, just an introductory acknowledgement that “If true….” No big deal.

  10. Davis Progressive

    “I think it wouldn’t hurt to wait to post mortem this matter until the claim is corroborated by those who were there or, at least, stated by someone who will speak on the record.”

    i think it would hurt a great deal. i think the public pushback is incredibly important here. i mean postmortems are great into things like japanese internment camps (to name an extremely extreme example) but it might have been nice to have had stronger pushback at the time.

  11. JustSaying

    Whether Tsarnaev was wrongfully refused an attorney when he requested one is history, and was within 48 hours of his apprehension when the judge appointed one. If it turns out his rights were violated, we’ll know soon.

    Hashing it out before we know what happened, based on one anonymous source, will not change Tsarnaev’s treatment.

    I certainly agree with you that we should speak out about immoral or unconstitutional acts when we know they’re being considered or are underway. Japanese internment, Chinese exclusion, bombing of civilians in Tokyo and Dresden, chemical warfare in Vietnam, launching a “preemptive war,” torture of “enemy combatants”–all are things we might have stopped if we’d only pushed back more. The difference, other than magnitude, of course, is that these things were verified.

    As David suggests, we’re still at the same place–arguing a minor point about whether we should assume something is true before we discuss the impact if it is true. Barely worth the effort.

  12. jimt

    The public safety exception to the Miranda warning seems like a good policy to me; may have helped the Boston investigation a lot–who knew whether or not there were other bombs ticking down somewhere or poised for a phone-call trigger, or if collaborators had additional terrorist plans?

    But I’m surprised there’s not a legal mechanism whereby such non-mirandized and non-lawyer interrogations are legal to do, but inadmissable in court, so suspect can speak more freely. So can start with such an interrogation to vet for possible ongoing threats and possible additional collaborators (for public safety purposes); then have a later separate interrogation with Miranda and lawyer, and interrogate the suspect more specifically on his role in the events.

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