Mirandizing Tsarnaev — why the government should come clean

Former federal prosecutor Bill Otis graciously quotes my latest reflections on the Mirandizing of the Boston Marathon terrorist and adds some thoughts of his own. Bill says that, if the Justice Department was concerned that 16 hours of interrogating Tsarnaev without a Miranda warning was pushing the outer limits of the Quarles exception for emergency questioning, the concern was undertandable:

I am not aware of a case in which any federal court has held that unMirandized questioning under the Quarles exception can last anywhere close to 16 hours. The central rationale’ of Quarles, applied to the circumstances of a terrorist threat that did not exist when it was decided, should allow questioning for at least 16 hours, if not a great deal longer. But that has not been tested. A prudent prosecutor would thus want to proceed with caution, and would very likely be getting antsy.

But in Bill’s view, the Justice Department should have put that concern aside in order to obtain as much information as possible from the terrorist:

The whole problem here is that the Administration, and Eric Holder in particular, insists on treating Jihad as the next case to be prosecuted, instead of the warfare it is.

However one evaluates the competing concerns that might have animated the Justice Department, we need to know what actually happened here. If the Justice Department brought the magistrate judge into the picture because it believed that continuing the questioning of Tsarnaev without the Miranda warning would put its prosecution in jeopardy, then it should say so. The public can then reach its own conclusion about whether this decision was sound.

But if this is what happened, please don’t pretend that the judge appeared “sua sponte,” as if out of thin air.

The left, and the left-leaning mainstream media, are always arguing for transparency in the government’s approach to the war on terror. Government transparency is always to be desired, but sometimes carries a high of a cost because it limits our ability effectively to fight terrorists.

But there is no such cost associated with telling the American people how Tsarnaev came to be Mirandized and, to the extent the Justice Department caused this to happen, why it did so. Thus, there is no excuse for the Obama administration to us in the dark. If it does so, we should assume it has something to hide and/or to be embarrassed about.

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