How the Law Should Deal with Dzhokhar Tsarnaev

Eric Posner weighs in.
April 22 2013 12:21 PM

The New Law We Need in Order to Deal With Dzhokhar Tsarnaev

Congress should authorize the isolation and detention of suspected terrorists.

Boston FBI Special Agent in Charge Richard DesLauriers (L) speaks as photos of suspects in the Boston Marathon bombings.
The government declared that Dzhokhar Tsarnaev would not be classified as an enemy combatant, but also would not be read his Miranda rights under the administration’s broad interpretation of the “public safety” exception to the Miranda rule

Photo by Shannon Stapleton / Reuters

When Dzhokhar Tsarnaev was arrested Friday night, the celebration was instantly overtaken by an ideologically charged debate. Liberals argued that the government must respect Tsarnaev’s constitutional rights, by which they meant that he should be treated the same as any ordinary criminal suspect—informed of his Miranda rights, supplied with a lawyer, presented to court as soon as possible. The subtext was that the treatment of Tsarnaev would refute yet again the hated Bush administration’s claim that it needed expansive war powers to fight terrorists. Conservatives by contrast, notably Republican Sens. John McCain and Lindsey Graham, argued that the government should classify Tsarnaev as an enemy combatant, and thus deprive him of the rights of ordinary criminal suspects. For the left, the Tsarnaevs are examples of “vulnerable Muslims” driven to extremes by President Obama’s immoral drone war; for the right, they are foot soldiers in a civilizational war.

The Obama administration, as always, threaded the needle. The government declared that Dzhokhar Tsarnaev would not be classified as an enemy combatant, but also would not be read his Miranda rights under the administration’s broad interpretation of the “public safety” exception to the Miranda rule. The Supreme Court has recognized a relatively narrow exception, which allows into court statements made before the Miranda warning as long as an immediate threat to public safety exists (like a bomb planted somewhere). The Obama interpretation would allow in statements taken before a Miranda warning as long as the government determines the usual warning would prevent the government from obtaining “valuable and timely” intelligence.

But this needle-threading will probably not work. As Emily Bazelon explains, no court has yet approved the Obama administration’s interpretation of the public safety exception. Tsarnaev’s interrogators take the risk that a court would not allow a jury to hear statements he makes under the administrations’ broadened exception to Miranda (as I predict a court would). As Bush Attorney General John Ashcroft argues, this may not matter for Tsarnaev given the other evidence of his guilt. But it will be important for investigations of future terrorist attacks. Others have complained that Obama has jumped the gun and accused the Tsarnaevs of terrorism before it has been proved that they had terrorist motives, thus contributing to prejudice against Muslims and (one could add) undercutting Dzhokhar’s chance for a fair trial.

But there’s another problem: If Dzhokhar Tsarnaev is treated like any other criminal suspect, the government will have to bring him to court as soon as he recovers from his injuries, give him a lawyer, and watch helplessly as he clams up under his lawyer’s watchful eye. Effective interrogation typically takes weeks, and the government has lost any time it might otherwise have had under the public safety exception, as ordinarily interpreted, because Tsarnaev was unconscious for a prolonged period after his capture Friday, though reportedly he recently started answering questions.

Neither the knee-jerk liberal nor the knee-jerk conservative response appreciates all of these underlying dilemmas. For liberals, the constitution is a fetish to be stroked at times of peril; it will protect us, whatever the stakes. They forget that criminal procedural rights were cobbled together over decades by fallible judges, who were responding to the needs of the time. What might have been appropriate during the civil rights era, when police used criminal law to suppress protesters and torment African-Americans, may not be appropriate for an age of terror.

Graham and McCain’s approach responds to the new threats posed by terror, but it’s at once too risky under current law and insufficient for addressing the problem. There is at best uncertain legal authority to detain a U.S. citizen on American soil as an enemy combatant, and to deprive him of Miranda and related rights. And so the government risks rendering any statements made by Dzhokhar, or a future suspect, useless at trial. And if it turns out (as seems likely) that he has no link with al-Qaida at all, it will be impossible to try him before the hopeless and widely loathed military commissions, which can be used only for members of that terrorist group or associated groups. In addition, by linking detention and interrogation powers to war powers, the Republican senators fail to address terrorist threats posed by non-Muslims like Timothy McVeigh, the Oklahoma City bomber.

There is a better approach. Imagine a law that grants police broad but temporary detention and interrogation powers in the aftermath of a mass killing in a public location—in other words, any potentially terrorist shooting or bombing. The police must first seek permission from a judge who will determine whether the act of violence satisfies the criteria, spelled out in the law, about the magnitude and circumstances of the attack. The police may then detain for one week, say, those whom they reasonably believe responsible for the attack, and interrogate them without informing them of their Miranda rights. Perhaps, the term can be renewed for good cause. The government would provide these detainees with lawyers who would not be allowed to meet with them, but could appeal the initial judicial order, and examine and challenge before a judge the government’s evidence that the detainee is responsible for the attack. The judge would have the power to revoke the detention power if it is no longer necessary, and to order the release of the detainees if they cannot be tied to the attack. Statements obtained from the detainee could be used against him in trial, unless they were obtained through coercion, intimidation, or deception. Conviction would require corroborating evidence.

The isolation of terrorist suspects is hardly a new idea; it was used effectively in the 1970s by Germany, Italy, and other European democracies to defeat terrorist groups like the Red Army Faction and the Red Brigade. Here and now in the U.S., there are several advantages to this approach. It treats in the same manner anyone who engages in terrorism or mass killing and does not single out Muslims, who are burdened by the legacy of the declaration of war against al-Qaida. It gives the police broad powers to deal with cases of extraordinary violence without granting them similar powers for ordinary criminal investigations. It avoids any reference to war or martial law, skirting the massive legal and political complexities associated with war powers. And because Congress would make the rules, and judges would oversee the system, the courts would likely hold it constitutional.

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.