As long as nothing the government learns from him before he's read his Miranda rights is used to convict him I'm not too concerned by this.

Here's a quote from your Orin Kerr link:

"So, contrary to what a lot of people think, it is legal for the government to even intentionally violate Miranda so long as they don’t try to seek admission of the suspect’s statements in court."

If I'm reading this right he's under arrest, but anything he says until he's read his Miranda rights won't be admissible in court. I assume (I know a dangerous thing to do) anything found from any admissions he makes would be inadmissible as well. (I think I've heard this referred to as "fruit from the poisoned tree").

I wouldn't trust the government to honor this, but a committed defense attorney, impartial judge and a free press would (hopefully) balance the scales.

I imagine all other protections apply. He will have to be arraigned without delay (his health obviously an issue), provided an attorney and all of the other Constitutional protections.

Senators say Tsarnaev should be declared 'enemy combatant

WASHINGTON -- Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.), said Saturday in a joint statement that alleged Boston Marathon bomber Dzhokhar Tsarnaev should be denied a defense attorney and declared an “enemy combatant.”

The demand to take civil liberties from any American citizen in a non-combat situation is very disturbing.

This follows these two idiots denouncing the drone filibuster and supporting gun control efforts.

The idea that we will be safe without liberty is wrong.

If I'm reading this right he's under arrest, but anything he says until he's read his Miranda rights won't be admissible in court. I assume (I know a dangerous thing to do) anything found from any admissions he makes would be inadmissible as well. (I think I've heard this referred to as "fruit from the poisoned tree"). -- JFP at April 21, 2013 8:42 AM

Yes and no. The intent of this "loophole" is the cop responds to a call of shots fired. He sees you running away with some blood on you and sees you have an empty holster and asks "Where's your gun?" or in this case "Is there another bomb?"

Then you answer and the cop goes to the primary scene based on the what you said. Technically is/was an interrogation. The court ruled that while you may be in custody your voluntary reply doesn't constitute a violation of your Fifth Amendment rights depending on the immediacy of the situation and based on public safety needs.

This is the armchair lawyer answer.

JFP, My understanding is the opposite. By declaring this to be a public safety exception, Holder is saying that what Tsarnaev says can and will be used against him.

Your understanding is based on the first paragraph of Kerr. But he goes on to say:

"2) Even if we assume that the police later seek to admit a statement from Tsarnaev from post-arrest custodial interrogation outside Miranda, a court would allow an initial pre-Miranda interrogation to be admissible under the public safety exception of New York v. Quarles, 467 U.S. 649 (1984)"

From what I hear he's got a breathing tube down his throat and isn't saying much of anything anyways, but your point is well taken.

I'm really glad you're posting this because I've seen a lot of mob mentality posts in comments, FB, etc. where people don't want his rights read to him, don't want him to get a lawyer, etc.

The demand to take civil liberties from any American citizen in a non-combat situation is very disturbing.

I have no problem stripping citizenship from those caught waging war against their fellow citizens.

In this case, however, I'll settle for giving him a fair trial and a fine hanging. Otherwise, he may get tenure from an institute of higher learning...

From what I hear he's got a breathing tube down his throat and isn't saying much of anything anyways, but your point is well taken.

This is true. So, if/when he regains consciousness, then he can be Miranda'd. We shouldn't be jumping the gun here. From the reports I read, he could barely breathe, let alone talk. Let's wait and see what happens once the doctors give the police the go-ahead.

Jerry & Jim P. thanks for responses.

Helps me to sort out the pros & cons of how to proceed with Dzhokhar Tsarnaev, and how it may affect the rest of us.

I have no problem stripping citizenship from those caught waging war against their fellow citizens. -- I R A Darth Aggie at April 21, 2013 11:03 AM

What is the definition of "waging war". Would it be because I attended a Pro-2A rally? What if I refused to give up my guns until the SCOTUS ruling in my favor? What if I was the lawyer for this scumbag?

Or should we have done this the simple way and had a hellfire missile on the helicopter that spotted him in the boat?

I have no issue with it in a case such as this, where they had every reason to believe there were more bombs placed and going to explode. Yes, it's a slippery slope. No, they weren't 'forcing" him to talk. Whether or not they tell him he has the right not to, he still doens't have to talk.

They aren't removing his rights. They just aren't spelling them out to him. Does anyone really not know them at this point?

What is the definition of "waging war".

Ummm...perhaps detonating an IED in a crowd with the express purpose of killing and maiming people who are no threat to the bomber in question? you think those two bombs were detonated for giggles and grins, Jim P? you think all that ammunition they placed down range a couple of days later was to improve their aim?

Go ahead, tell me that wasn't an act of war. I'll wait, take your time.

You have an odd definition of "act of war".

If an action like this was done with the aid and support of some
foreign state, then it was an act of war. If it was done because
the perp hated [name your pejorative group here], then it was a
very serious crime.

Since congress has the power to declare war, who would you urge
them to declare war against?

Ummm...perhaps detonating an IED in a crowd with the express purpose of killing and maiming people who are no threat to the bomber in question? you think those two bombs were detonated for giggles and grins, Jim P? you think all that ammunition they placed down range a couple of days later was to improve their aim? -- I R A Darth Aggie at April 21, 2013 5:39 PM

They were terroristic, criminal acts, and as it stands now there is no definitive ties to any state sponsor, or even a named, foriegn, political group.

As Ron so aptly asked "Since congress has the power to declare war, who would you urge them to declare war against?"

The problem of doing something like stripping his civil rights is that it was for the bombing. Then when some guy shoots a couple of cops that are doing a no-knock warrant because he is a practicing Muslim and e-mailed someone who works for CAIR, let's label him a terrorist.

Or just because the uncle is also from Chechnya they can take his civil rights away, while looking into his background.

The slippery slope argument is not so far out there. Remember the NDA Act that allows rendition?

The more that you want to give up someone else's liberty the more you are willing to give up your own.

Foolishness; the whole purpose in not Mirandizing him is allow the FBI to play catch-and-release: "Gee, we had an open-and-shut case, but forgot to read him his rights. Well, we'll have to let him go...".

Once he was in custody, momof4, and the bombs removed, he should be Mirandized. All of you who are thinking that it's OK to pull this on the man because he's so horrible should be deeply ashamed of yourselves.

Had he been caught by Bostonians at the finish line before detonating the bomb and lynched from the nearest light pole, I'd have no problem with it. But our government has rules by which it operates, or should operate, to protect all of us.

We Mirandize people and allow them access to legal counsel because sometimes they're Richard Jewell, accused and demonized for the 1996 Atlanta Olympic bombing but not only innocent, a hero.

We Mirandize people and allow them access to legal counsel so they don't end up in dog cages for ten years in a naval base at the ass end of Cuba without trial.

We Mirandize people and allow them access to legal counsel so they aren't stripped naked and paraded around at the end of a leash for the amusement of American MPs.

We Mirandize people and allow them access to legal counsel so they aren't waterboarded by agents of US intelligence.

We Mirandize people and allow them access to legal counsel so they aren't "loaned" to other countries to perform the torture on our behalf.

We Mirandize people and allow them access to legal counsel because we're supposed to be the good guys.

If you think that any of those things are "good riddance" in cases like this, I am deeply ashamed of you. You're a sorry excuse for an American. Unfortunately, our country is full of, and largely run by, people just like that.

Grey Ghost,

+100

No matter that we think he's guilty as sin, depriving him of his rights make us as much a barbarian as he is.

If it is an active shooting event, I have no problem with killing whoever has the gun or grenades that is shooting at us. But that is a world of difference from a person being caged, whether in a prison or hospital bed.

I personally think the Miranda warning is stupid, for this reason: Having the warning read to you isn't what confers the rights to you. You have the rights already. The reading of the Miranda warning is an arbitrary check-the-box activity that was originally imposed by a court ruling.

Having said that: If I'm a suspect and I'm stupid enough to blabber, then I deserve to have anything I say used against me. On the other hand, once I've asserted my right to remain silent, that should be the end of interrogation, but we all know that often it isn't. That's how we wind up with stupidities like the Miranda warning.

Islam has been at war with us for the better part of 40 years. Much longer if you care to go back to the Barbary Pirates, but it's been a off and on hot war. And they've had foreign incursions to deal with during much of that time, so their targets were more readily available and they could ignore the USofA.

They wage war on us with the approval of their god. Surely you know that this is actually required of them. Just read this blog.

I just read this on the MSN website:

"Authorities have told NBC News that a special team would grill Tsarnaev without advising him of his Miranda rights under a “public safety exemption.”"

However, since he's already being asked questions, and writing down his answers, I'm surmising that the Miranda reading might be moot, anyway.

Grey, tell me how again that not reading him his rights equates to depriving him of them? As was pointed out above, you don't have to have the rights read to you to HAVE them. It's a very important distinction.

If all our rights are dependent on a cop telling us we have them at every interaction, we are lost indeed.

Islam has been at war with us for the better part of 40 years. ... -- I R A Darth Aggie at April 22, 2013 8:38 AM

That's great. Please show me where Congress or any of the Presidents declared a war or police action against the State of Islam?

Did you also want to deprive McVeigh of his rights?

The point is that once you deprive someone of their rights because you think it is the right, not just, thing to do you make it easier for someone else to do it to you. This is the equivalent of First they came for... concept.

Like I said -- I think he's guilty as sin and needs a needle in his arm. But I will defend his right to have a nominally fair trial. I would also defend your right to have a fair trial if you were to pull a Jack Ruby on national TV.

Please show me where Congress or any of the Presidents declared a war or police action against the State of Islam?

Can't. They haven't (declared a war or police action against the State of Islam). They didn't KNOW that the State of Islam is waging war against us (and everyone else who isn't THEM, for that matter).

And as far as I'm concerned, Islam has been waging war against everyone else for better than 800 years. Mohammed declared it. The rest of 'em are waging it. And there probably won't be a stop to it any time soon. BUT, it's been small-scale, for the most part. Once it left the Middle East is when peole should have been more aware.

Can't. They haven't (declared a war or police action against the State of Islam). They didn't KNOW that the State of Islam is waging war against us (and everyone else who isn't THEM, for that matter). -- Flynne at April 22, 2013 11:35 AM

But the point stands -- if you strip his rights and use a military tribunal you are just creating a new Islamic martyr. And you are tacitly giving the government the ability to strip anyone else's civil rights because the perpetrator <committed some horrendous act>.

As internally satisfying as it would feel to find out he was beat to the edge of his life, could you actually be the person that did the beating? And would you call it justice? If you could -- I don't want to be anywhere near you.

"Or should we have done this the simple way and had a hellfire missile on the helicopter that spotted him in the boat?"

Holy crap, that's just insane.

I mean, it was a nice boat, you know?

As internally satisfying as it would feel to find out he was beat to the edge of his life, could you actually be the person that did the beating? And would you call it justice? If you could -- I don't want to be anywhere near you.

I would like to think, from most of my posts here, that you knew me a little better than that. I couldn't and I wouldn't. I was just saying that our government has thus far turned a blind eye and a deaf ear to the Islamic threat, to our detriment. Something's gotta change, and soon. Maybe it's already started; we can only hope. Else-wise,we're all well and truly fucked. And that's the bottom line. The whole goal of Islam is to establish the "New Caliphate" and I know I don't want me and mine living under Sharia Law. I would hope you don't either.

I would like to think, from most of my posts here, that you knew me a little better than that. I was just saying that our government has thus far turned a blind eye and a deaf ear to the Islamic threat, to our detriment. Something's gotta change, and soon. ... I would hope you don't either. -- Flynne at April 23, 2013 5:10 AM

I do know you better, and didn't think you would advocate it. That's my point -- if we corrupt our civil judicial system, even a little, to remand this scumbag to the military judicial system then it is a quick, slippery slope.

As these two persons were not be natively tied to any terrorist group, they couldn't really be spotted without major invasion of their civil rights, be that the 1st, 4th, or 5th.

Something will change. Europe has essentially fallen already. So the question is whether the government will break from the House of Saud, or will this song be prophetic.

One of my faves, Jim, one of my faves. And yeah, I hope it doesn't turn out to be prophetic. But thanks for the reminder.

Actually a thought finally struck me about how to demonstrated the treat to justice and and our civil liberty's. The hijackers struck with complete success on 9/11. They also had a partial success with Flight 93 going down, but not on target.

Flight 93 is the example of lessons learned. So they hardened the cockpit doors and the passengers hardened themselves.

What did the government do? They implemented the TSA which takes away your 4th amendment rights (civil liberty) in order to fly. And they have expanded the TSA to other areas.

So if you allow the federal prosecutors to move a citizen to military tribunal or take his 5th amendment rights away, what do you think they'll do the next time someone posts XOXOXO'x and I support Islam for Dzhokhar Tsarnaev?

"That's my point -- if we corrupt our civil judicial system, even a little, to remand this scumbag to the military judicial system then it is a quick, slippery slope."

I wonder why it is that you appear, as others appear, to think "military" means "unjust" when it comes to a trial.

The real issue is just how to treat a group, which is not identified as a nation, and which has stated goals such as the extermination of Jews and jihad against America.

Until you figure out if these are common criminals or organized combatants, you'll not have a good place from which to argue.

If these guys had used a Russian 120mm shell, would THAT make them combatants?
Is status as a combatant based on the size and type of weapon?

So far, all I can see is that these guys don't wear uniforms - as they engage in systematic attacks.

This time, we're the Redcoats. And at some time or another, you all are going to recognize that the rights of someone bombing your neighbors simply don't matter - any more than that of the thug on whom you have pulled a pistol in self-defense. If you can do such a thing. (I'm guessing you can, JimP, but lots of people cannot move to save their own life.)

I wonder why it is that you appear, as others appear, to think "military" means "unjust" when it comes to a trial.

I'm not saying it would be unjust, but a military trial has a component that you don't have in the civilian court. That is the "good order and discipline" or "needs of the service (nation)".

In this case, the government could have decided to try Abdul Rahman Ali Alharbi (the guy with burned hands) for conspiracy. He could have all the proof in the world he had no prior knowledge or contact with these guys (trying to prove a negative is hard). So the tribunal could still find him guilty of something, just so the AG doesn't get egg on their face. And it would be for needs of the nation.

With the Patterico case if he was in the military, he may have been well within his rights to say whatever and still be kicked out for "good order and discipline". (And it has been done.)

The real issue is just how to treat a group, which is not identified as a nation, and which has stated goals such as the extermination of Jews and jihad against America.

Until you figure out if these are common criminals or organized combatants, you'll not have a good place from which to argue.

But until then do you want us to treat Muslim-Americans like we treated the Japanese before/during WWII? Or blacks before the civil rights movements?

And at some time or another, you all are going to recognize that the rights of someone bombing your neighbors simply don't matter - any more than that of the thug on whom you have pulled a pistol in self-defense. If you can do such a thing. (I'm guessing you can, Jim P, but lots of people cannot move to save their own life.) -- Radwaste at April 23, 2013 3:15 PM

Until we can find some way to pick the extremists out of the milieu there is no good answer. My argument is that declaring the interior of the U.S. to be combat zone is the worst thing to do.

I have not had to pull a weapon in self-defense, yet, and hope I never have to, but think I could fire if I needed to. But I know my safety and security is my own responsibility.