MY OUTRAGE ABOUT BOSTON

I am outraged that anyone, for any reason, would place bombs near the finish line of The Boston Marathon!

I am outraged that these bombs were planted with the obvious intent to kill and maim human beings, no matter the reason behind it!

I am outraged that it took thousands of law enforcement officers from numerous jurisdictions about twenty-four hours to finally capture the second suspect after he and his brother allegedly added an MIT campus officer to the carnage as the suspects still presented danger to the public!

I am outraged that thousands upon thousands of Massachusetts residents were effectively prevented from working, playing, learning, worshiping, or otherwise going about their daily lives as this drama unfolded before them!

I am outraged at the person or persons who commited this atrocious act whether it was the two brothers named as suspects or different people, or people in addition to the two brothers!

I am now outraged that The Justice Department has questioned or plans to question Dzhokhar Tsarnaev without reading him his Miranda Rights!

You, know, the statement presented to criminal suspects informing them that they have a right to be represented by an attorney during questioning because whatever they say may be introduced into evidence against them in court.

The DOJ is invoking the ‘public safety exception” to the Miranda Rule. That is:

The police can interrogate a suspect without offering him the benefit of Miranda if he could have information that’s of urgent concern for public safety.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/04/dzhokhar_tsarnaev_and_miranda_rights_the_public_safety_exception_and_terrorism.html

So explains Emily Bazelon in her column in Slate.com in which she presents the history of this “public safety exception”. It was established by a Supreme Court ruling in New York v Quarles, (1984) where the interrogation of an arrestee without Miranda Rights was permitted. There the suspect was known to have had a gun but when arrested he had an empty holster, so the possibility existed that harm could come from the gun unless information was obtained immediately.

Then some cases involving alleged terrorists came to light where this public safety exception was invoked. The interrogation of Zacarias Moussaoui was bungled, he being the possible 20th 9/11 killer. He was arrested before 9/11.  FBI agent Coleen Rowley requested guidance as to when the exception applied.

Then Umar Farouk Abdulmutallab, the Christmas day bomber, and Faisal Shahzad, the Times Square bomber, (neither of whom was successful of course) who were first questioned under the exception and then Mirandized. The former quit talking but the latter continued.

After these incidents  Attorney General Eric Holder suggested a law defining the exception be passed but this went nowhere. The DOJ subsequently produced a memo to the FBI (Note to self…when DOJ writes a memo concerning our rights, run for the fucking exits!) that stated:

Agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents,

and then expanded upon that:

…there may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.

The old adage “the exception proves the rule” is both correct and adequate to confirm that the aberrant behavior itself demonstrates that there is a rule to which an exception is being made.

I fear that is one of the instances in which it appears the “exception BECOMES the rule”. Thus it is no longer an exception.

After all, there is no clear standard to determine when the government’s interest outweighs other considerations. Under the memo the DOJ and FBI, no one else, gets to decide.

Bazelon concludes her piece with this.

Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

Ironically this all occurs against the backdrop of the failure of the Senate to pass a bill requiring background checks for gun purchases. Many Senators made their case for rejection claiming the law would be a violation of the 2nd Amendment.

Senator Lindsey Graham said, “I’ve always been confident if the Senate debated the Second Amendment, the Second Amendment would win.”

But this is what he said about Boston, “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent” Of course Miranda Rights stem from the 5th Amendment.

Two facts stand out about Graham’s equivocation on Constitutional rights. He gets money from gun lobbyists but there are no equivalent 5th Amednments rights groups handing out cash. The Senate vote took place Wednesday. Tuesday night Graham was named Legislator of the Year by a gun rights group.

Why am I…and why should you be…outraged about this?

Because, when the law gets bent out of shape for one person, it’s easier to bend out of shape for the rest of us.

Don’t say I didn’t warn you.