Glenn Greenwald: How Do We Know That the Boston Bombings Were an Act of Terrorism?
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And so, the most—the principal question right now is whether the suspect in custody in the hospital will be given the traditional protections that people are given whenever they’re questioned. The one that’s gotten the most attention is whether he will be read his Miranda rights, be advised that he has the right to remain silent, the right to counsel, which the Supreme Court has said is necessary to safeguard the Fifth Amendment right against self-incrimination. As you just indicated, the Obama administration in 2011, without much attention, significantly expanded a recognized exception to the Miranda right, which is called the public safety exception, where the conservative judges of the court in 1984 basically said if you have very narrow and quick questions to ask a suspect once you arrest him designed to safeguard the public, such as, "Is there a bomb set to go off? Is there a gun that you’ve hidden? Is there an accomplice on the loose?" you can ask those questions before Mirandizing them. And what the Obama administration did is significantly expand this exception in 2011 in terrorism cases to say that we’re not confined just to public safety, we can ask a whole variety of other questions relating to intelligence and other matters without Mirandizing the suspect.
But the more important legal issue is the question of presentment, which is, once you arrest a person, traditionally you are required—the government is required, under constitutional law and statute, to bring the person to a court, to a magistrate, as quickly as possible, as reasonably as quickly as possible, so that the person can be advised of his or her rights and a determination can be made whether there’s probable cause to have arrested the person. And that’s what really safeguards the rights is having the court involved in the process. The Obama administration in 2011 also said that they intend to seek legislation to give them the power to delay that significantly in terrorism cases. They never got the legislation, but instead they—they have been gradually giving themselves the power to delay taking suspects to court. Of course, in this case, it’s not yet an issue because of the suspect’s medical condition. But that’s really the question, is: Will he be treated like every other criminal suspect and taken as promptly as possible to a court so that a court can monitor and safeguard his rights?
AMY GOODMAN: Can information taken before Miranda rights are read be—would it be acceptable in court?
GLENN GREENWALD: Well, under the Miranda rulings of the court, in general, statements that are made before Miranda rights are given are inadmissible. The court did recognize this public safety exception in 1984 that said that if you’re asking the person very narrow questions designed to safeguard the public interest, the public safety, before you Mirandize him, then statements that you obtain can be admissible.
Now, people are pointing out that in this case Miranda really isn’t that important, because statements that the suspect makes are unlikely to be necessary to convict him, given what appear to be all the other evidence that they have. I’m not really so sure that’s true. We certainly have seen some of the evidence, but there’s lots of questions about the guilt, particularly of the younger brother, certainly about his motive. It’s far from a clear-cut case that he’s guilty of anything, let alone the very serious charges that they’re talking about. So I think people are being a little bit dismissive of that question.
But the bigger issue is that the Miranda rights and the issue of presentment are really designed to prevent coercive interrogations, to prevent people from being pressured and manipulated. You have the high-value team already standing outside the hospital room, if not already questioning him, people trained in highly aggressive interrogation tactics. That’s really the issue, is: Do we want the government to be able to question people, extract statements, extract confessions, make threats, in the dark without any lawyers present, without courts monitoring what is being done? And I think the answer ought to clearly be no, that whether it’s terrorism or any other crime, we ought to safeguard rights as well as public safety.