Perhaps 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