How do we treat the suspect captured last night for the Boston Marathon bombing? If Dzhokhar Tsarnaev, a 19-year-old Chechen, is linked to international terrorist groups such as al-Qaeda, federal intelligence agents should get the first crack at him, without a Miranda warning or lawyer. He would be an enemy combatant, entitled to the same constitutional rights, no more and no less, that any enemy would receive, as the Supreme Court made clear in the 1942 Quirin case. In wartime, no enemy combatant receives Miranda warnings or lawyers, which would defeat the purpose of conducting interrogation for the purpose of gaining intelligence — not for investigation purposes of a suspect.
But if Tsarnaev is a domestic killer with a death wish, without any link to our War on Terror, Miranda applies. He must be warned of his right to a lawyer and his right to remain silent, and be provided with a lawyer if he wants one. There is only a narrow exception, the “public safety” exception, that allows questioning to gain information about any threats and exigencies, such as another attack or imminent crime. I think this exception should be read more broadly by the courts, because of the importance here of rolling up any network supporting the Tsarnaevs before it scatters.
The best thing for the government to do would be to question the younger Tsarnaev without Miranda and without a lawyer, but under the condition that nothing gained could be used against him in a civilian trial. Once questioning for military and intelligence purposes is over, the government should then read him his Miranda rights and provide him a lawyer. But the main focus should not be on getting a “confession” or gathering evidence for a prosecution, but on gaining intelligence on any broader network or planned attacks. The goal should be stopping future attacks, not holding him guilty for past ones (that should prove easy enough with the great deal of physical evidence available).