Mirandizing Tsarnaev — Questions for Eric Holder

Mike Rogers, Chairman of the House Intelligence Committee, is as perplexed as I am about the circumstances associated with the Mirandization of the surviving Tsarnaev terrorist. Accordingly, he has written a letter to Eric Holder posing questions for the Attorney General.

Concerned that the interrogation of Tsarnaev may have been “conducted in a manner that prematurely cut off a lawful, ongoing FBI interview to collect public safety information,” Rogers tells Holder:

I would like more information as to who determined that the proceedings [in a hospital involving the magistrate judge who Mirandized Rogers] would occur at that time and place while [FBI] questioning was still ongoing. I have received information suggesting that the Magistrate Judge may have appeared sua sponte to conduct the proceeding in a way that may have not been fully coordinated with the intelligence needs of the FBI. My understanding is that the normal practice places the duty to take the defendant to court (and accordingly discretion as to timing consistent with the rules) on law enforcement, and not the court.

Accordingly, I am requesting a specific and detailed explanation of the facts and circumstances of the nature and timing of this initial appearance. Specifically, I would like to know whether the magistrate or the government first raised the timing of the appearance, how and by whom the timing and conduct of the appearance were determined, and whether the Department of Justice or Federal Bureau of Investigation expressed any concerns about either the timing of the appearance and/or potential administration of Miranda rights to the defendant in the case.

I would also appreciate knowing when the prosecutors and public defenders appearing at the proceeding were informed of it, and whether they raised any concerns with respect to the proceeding. Finally, I would appreciate knowing whether other elements of the Intelligence Community or the Adminstration were consulted with respect to the potential impact this proceeding might have on intelligence collection.

For what it’s worth, my guess is that the FBI raised major concerns about Mirandizing the suspect while it was still interrogating him. I’m also guessing that the magistrate’s appearance was not “sua sponte.” Rather, in all likelihood, government lawyers caused it.

Did they cause it by deciding to charge Tsarnaev? That, I think, would be sufficient, and necessary, cause for a judge of some sort to advise the defendant of his rights (normally this would occur in a court room, but here the defendant was injured and couldn’t appear in court).

But why would government lawyers charge Tsarnaev while he was still in the hospital being questioned by the FBI — surely, they knew that doing so would lead to the Miranda warning? Probably because they (and here I mean top lawyers at DOJ) figured, for ideological reasons, that 16 hours of questioning were enough — never mind what the FBI thought — and that it was time to read this terrorist his rights.

For Department of Justice, then, protecting Tsarnaev appears to have trumped protecting the public.

I’m just speculating, though. Let’s wait, but not breathlessly, to see what Eric Holder says.

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