Interrogating Tsarnaev

Dzhokhar Tsarnaev has been arrested in connection with the Boston Marathon bombings. CNN reports that he “lies in a hospital with a gunshot wound to the side of his neck, sedated and intubated,” but that he could be put on a “sedation holiday” and brought back to consciousness to be questioned. This raises several issues.

Must he be given Miranda warnings? No. There is no free-standing requirement that police administer Miranda warnings to suspects. Such warnings generally are a prerequisite to using any subsequent statement against the suspect in court, but if authorities don’t care about the admissibility of any confession in light of what appears to be ample other evidence against Tsarnaev, the warnings need not be given. Chavez v. Martinez, 538 U.S. 760 (2003).

Does the public safety exception to Miranda apply? Not clear. Some have suggested that Tsarnaev could be questioned without Miranda warnings, and that any resulting statements could still be admissible in court under the public safety exception to the Miranda rule. I wrote about that issue three years ago in connection with the attempted Times Square bombing. The posts are here and here. To summarize, the public safety exception has been applied so far only to very limited questioning in the first moments of interaction between police and a potentially dangerous suspect, e.g., “where’s your gun?” Maybe a court would expand it to encompass protracted questioning of a terrorism suspect, but that’s far from a slam dunk. Readers interested in further exposition of the public safety exception may wish to consult Robert L. Farb, Arrest, Search, and Investigation in North Carolina 535, 587-89 (4^th ed. 2011).

Can he be held as an enemy combatant? I doubt it, but I’m not an expert. Some politicians and others have argued that Tsarnaev should be detained as an enemy combatant. For the reasons that follow, I doubt that’s proper, but this isn’t my bailiwick so I welcome additions and corrections from others who are more versed in the issue. As a starting point, this Wikipedia entry explains that the term “enemy combatant” lacks a precise legal meaning. Generally, though, it refers to a person who is detained under the laws of war, as opposed to a person detained in connection with civilian criminal law. Whether to classify Tsarnaev as an enemy combatant relates to the Miranda question because enemy combatants typically are not read Miranda rights, but it goes beyond that question insofar as they are typically tried, if at all, in military tribunals rather than civilian courts. To qualify as an enemy combatant, one generally must be a member or supporter of an enemy force, such as Al Qaeda or the Taliban. So far, it appears that Tsarnaev isn’t. The New York Times reports that “officials said they were increasingly certain that the two suspects had acted on their own,” and also states that “there is no known evidence suggesting” that Tsarnaev is linked to Al Qaeda or any other extremist group. Even if Tsarnaev can fairly be described as a member or supporter of an enemy force, there is a potential constitutional barrier to holding him as an enemy combatant. He is a naturalized American citizen, and while American citizens captured overseas may be held as enemy combatants under Hamdi v. Rumsfeld, 542 U.S. 507 (2004), it is not clear whether an American citizen captured in the United States may be.

However the questioning of Tsarnaev proceeds, I hope he decides to tell the police what he knows. It wouldn’t come close to making amends for what he appears to have done, of course, but it might help prevent similar tragedies in the future.