Not too many care about the fact that Dzhokhar Tsarnaev is a kid. Not too many will feel troubled that he was shot.  In fact, there are a great many of us who think that rubbing salt in his wound would have been an excellent way to both make him talk and pay him back, just a little for now, for the horrible crime he’s accused of.  After all, America is furious, and that changes everything.

The battle between a principled criminal justice system and whoever we hate the most at the moment rages every time a tragedy strikes.  But that’s the point.  The legal system doesn’t have much reason to seize the people we admire and respect, the ones we want to be treated well and whose rights we pray will be honored. Not that it doesn’t happen, but not often.

It’s by the treatment of Tsarnaev that the bar is set.  And it has just be set at 16 hours, but only by the fortuitous interference of a United States Magistrate Judge.  How many more hours is left to our imagination, but for that mettlesome judge.  Via Emily Bazelon at Slate :

According to the AP, Dzhokhar Tsarnaev answered questions for 16 hours before he was read the Miranda warning that he could remain silent and could ask for a lawyer. Once Tsarnaev was told that, he stopped talking. (So much for the idea that everyone has heard Miranda warnings so many times on TV that they have become an empty ritual.) The AP also reports that the investigators questioning him were “surprised when a magistrate judge and a representative from the U.S. Attorney’s office entered the hospital room.” The investigators “had planned to keep questioning him.”

Wow. That’s bad no matter your point of view.

The accuracy of that last line is unclear.  Jon Stewart did a montage during his monologue the other night that suggests there is a point of view that wouldn’t find this bad at all.



While the Bill of Rights may be largely up for grabs, the focus on how the feds handled their moment in the sun in the interrogation of Tsarnaev is instructive.  There have been no shortage of words spilled on the Quarles public safety exception to Miranda, with discussion ranging from the rationale for not alerting the target of his right to remain silent in order to prevent imminent harm to more people while lawyers, guys like me, harp on constitutional rights rather than saving people’s lives.  The questions of admissibility of evidence seem pretty trivial compared to stopping the murder of innocent bystanders.

Despite this discussion, there remain some huge questions and assumption involved in what the government has chosen to do to Tsarnaev.  Is it conceivable that they needed 16 hours plus to ascertain whether there was another person or group about to engage in another attack?

But to show the distance we’ve traveled: No one delayed the Miranda warnings—or talked about enemy combatant status—for Timothy McVeigh, the Oklahoma City bomber, or Eric Rudolph, the Atlanta Olympics bomber. OK, that was before 9/11. But even in 2009 after the arrest of the attempted Christmas Day bomber, Umar Farouk Abdulmutallab, the FBI questioned Abdulmutallab for only 50 minutes before Mirandizing him.

If this is about the public safety exception, than the government has taken a quantum leap into the temporal abyss.  But it’s not clear that this has anything to do with the public safety exception, as it’s hard to imagine anyone arguing with a straight face that they needed five hours, ten, 16, more, to find out whether this 19 year old kid, this kid who had been shot, this kid who (for all he knew) was about to disappear in some black hole the government reserves for terrorists, knew anything about another imminent attack.

Most of our constitutional protections are built upon an assumption, that the remedy for their violation provides an incentive for the government not to do so.  We have plenty of platitudes about our beloved freedom and liberty, and how grand we are when it comes to honoring them, but that’s the stuff for school children and people who aspire to live on cul-de-sacs.

What our system is particularly poor at is keeping the men with guns in line when they chose to behave differently.  The incentives all apply best after the fact, and even then can’t be relied upon.  I expect the very smart lawyers at the Department of Justice will pool their resources and come up with a brilliant explanation for why this had to be done, replete with appealing platitudes like “freedom isn’t free” and “you have to break a few eggs to make an omelet.”  They have an aptitude for coming up with logical fallacies that play well to the masses, and I merely speculate as to where they will go since my imagination isn’t nearly as fertile.

But this shows us that our protectors can’t be trusted with vague exceptions that allow the exercise of discretion.  Bright line tests fail to accommodate the outlier situations, the needs that might arise if unanticipated things happen, like aliens invading Manhattan or American kids, described as Chechen so we forget they wear their hat in that stupid backward fashion, bombing Boston.  Don’t we owe the feds the respect to let them do as they must to protect us?

So we gave them 50 minutes and they took 16 hours. They would have taken more but for the surprise visit of the judge, who didn’t get the memo that they hadn’t extracted all they wanted yet.  And for this, they have the trust and appreciation of the American people for making us feel safer because we hate this kid for what he is accused of doing. 

Contrary to Bazelon’s “wow,” I doubt that most will think this “bad.”  They may the next time it happens, when the individual isn’t nearly as hated as Tsarnaev, but by then it will be too late.