So now, the next necessary deception in the campaign is to convince you that — all together now — “the system worked.” In reality, the civilian justice system did not work, and that is because it cannot work — not if the objective is the swift acquisition of vital national-defense information.
It could not be more obvious to an objective, rational person that if the aim is intelligence collection, it is far better to interrogate a terrorist without limitations on time and subject matter, without the interference of a defense lawyer, and without empowering the detainee by giving him plea-bargaining leverage to trade for information. The Obama administration, however, is telling you, with a straight face, that the imposition of civilian due process will produce intelligence just as effectively, if not better.
Most people, of course, realize that this is impossible if Miranda warnings must be given. So the administration rolls out canard No. 1: the “public-safety exception.” The public is led to believe that this exception means agents have at least 48 hours of freewheeling interrogation before Miranda kicks in and the terrorist clams up (upon lawyering up). This is brazenly false.
The public-safety exception is an exceedingly limited end-around. It applies only when arrest is accompanied by an immediate threat to public safety. It is not designed to provide the government with an information-gathering advantage against the arrestee. It is narrowly tailored to address the threat that triggers the exception.
There is no 48 hours. The exception ends when the threat ends — which, in the view of most courts, happens as soon as the detainee is rendered defenseless. This usually amounts to something closer to 48 seconds than to 48 hours. Moreover, the exception is not a license to do an extensive intelligence debriefing; the pre-Miranda questioning must be tailored to the threat — along the lines of, “Where is the gun?” or “Where are the unexploded bombs?” The public-safety exception does not cover “Where did your brother get terrorist training in Dagestan?”
For intelligence purposes, the public-safety exception to Miranda does not come close to putting arrest in the civilian-justice system on par with enemy-combatant detention. The administration rightly figures the public does not know this, but to anyone with a passing acquaintance with the relevant law, the suggestion that the two paths are comparable is insulting.
Thus canard No. 2: The judge did it. The administration and its accomplices on Capitol Hill have spread the story that the Tsarnaev interrogation was going just swimmingly when, to the shock of everyone, a magistrate judge barged into the hospital room and Mirandized the terrorist, abruptly ending the hugely successful intelligence effort. This, too, is utter nonsense.
As the Justice Department well knows, the filing of the criminal complaint is the action that vested the federal court with jurisdiction to act. The moment the complaint was filed, everyone involved in that decision knew that the rules of criminal procedure mandated a prompt “presentment” hearing before a magistrate judge, who would be required by statute to advise Tsarnaev of his rights to counsel and to stop speaking with government agents. Indeed, it is customary that the Justice Department prosecutors on the case orchestrate these proceedings as soon as they file the complaint. They make sure a defense lawyer is assigned by the court, schedule a hearing time with the magistrate judge, and arrange for a court reporter and, if necessary, an interpreter.
The whole point of the presentment is to get the arrested person out of the government’s clutches and into the Bill of Rights’ carapace. Moreover, when an arrestee is incapacitated, as Tsarnaev was, it is unexceptional to convene the presentment at a hospital — and the magistrate judge and defense lawyer cannot get into the location where the detainee is held under heavy security unless the Justice Department arranges for that to happen.
It was not the magistrate judge who decided Tsarnaev should be Mirandized. It was President Obama and Attorney General Holder.