The Wrong Standards for Tsarnaev


After reading yesterday’s accounts in the Wall Street Journal, we see the consequences of the Left’s counter-war on the war on terror coming to fruition in the inept  mishandling of the interrogation of the younger Tsarnaev.

First, the Obama administration, buying the idea that terrorism is really a problem for law enforcement, decided not to designate the surviving Tsarnaev brother as an enemy combatant and to conduct his interrogation under the rules reserved for garden-variety criminals. The Obama Administration limited its ability to ask questions of Tsarnaev without Miranda warnings or a defense lawyer present only to a narrow “public safety” exception, which runs only to questions about imminent dangers and crimes.

Now the news comes that the person who actually read the Miranda warning to Tsarnaev wasn’t even an FBI agent, but a U.S. magistrate judge (magistrate judges are sort of like junior federal judges — they are appointed by the courts to assist them, but they are not real judges, and are subject to revision by real federal judges). 

This is an outright violation of the separation of powers. It is not for federal judges, or worse yet their assistants, to rove around looking for criminal cases in which to act as law enforcement agents. The decision whether to read Miranda lies up to the executive branch.  The right of the courts to affect the warnings and conditions of interrogation stems only from their control over the criminal trial of the suspect. Miranda itself is only a declaration by the courts that they will exclude from evidence any confessions received without a warning. Under the Constitution, the President is responsible for the enforcement of the laws, not the courts — the courts’ constitutional job is to decide cases and controversies that arise under those laws.

But the Obama Administration apparently did not protest very hard against this violation of the separation of powers. And we can see why.

When the war on terror began, the Left’s immediate reaction was to domesticate it by subjecting it to the same rules that apply to domestic crime. They have waged long struggles in the courts to invite judges to intervene in military and national security decisions that have never fallen within the review of the courts in any previous war. They succeeded in having the federal courts, for the first time in any American war, exercise habeas review over a military prison camp, at Guantanamo Bay. 

If you live in that world, why not have judges intervene in the decision to read Miranda warnings to terrorists, even before the executive branch has decided the question and even before any case has come to the court? Just as Obama is trapped by ideology on the Miranda question, he is equally trapped by his anti-war roots in allowing judges to intervene where they have no right to tread. Our national security will only suffer as a result.

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  1. Profile Photo Inactive

    The Left has to believe that the war on terrorism can be handled that way.  The idea that perpetual peace is a pipe dream, and, hence that the traditional understanding of the laws of war and war are as necessary now as they were i in the past, cannot be reconciled with the hope for progress that make the Left the Left.

    But as Poor Richard said, “he who lives on hope dies fasting.”

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  2. Profile Photo Inactive


    ?So was Timothy McVeigh an “enemy combatant”.

    There are serious difficulties with any “War” on something so nebulous as terror. Explain why this isn’t so, especially in view of the constitutional safeguards every CITIZEN supposedly enjoys.

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  3. Profile Photo Member

    Now the Judiciary has a conflict of interest in ruling on the adequacy  of the Miranda warning given to Tsarnaev because it was given by one of their own.  That would be akin to letting a Chief of Police decide that issue in a case where another officer in his department gave the warning.

    That’s quite an unnecessary web to be tangled in.

    It’s even a public relation’s nightmare:  The judiciary has joined the prosecution.  Goodness we look like a banana republic.


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  4. Profile Photo Inactive

    The decision to not advise Tsarnaev of his Miranda warnings, and seek a waiver was deliberately made, so as to be able to continue to ask him questions concerning additional threats that would cease, should he invoke his right to silence or his right to an attorney. This decision was based (I think) from DOJ policy on handling enemy combatants.Enemy combatants are handled differently than civilian criminals; they are not covered by Miranda. Enemy combatants are tried in a military tribunal, and not a criminal court.The problem here is using the Public Safety Exception (PSE). By claiming the Miranda warnings were not given because of the PSE, Tsarnaev is not an enemy combatant. As soon as the PS event is resolved (Tamerlan was dead and Dzhokhar was under arrest and in the hospital), the PSE is over, and Miranda decision rules apply.

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    I am confused about this whole enemy combatant thing.

    He is an American. He would seem to me to be no different from the anarchists of the 20’s. Don’t believe any of them were tried in a military court. They blew up stuff, killed people, had riots – the whole gamut. Yet for some reason the police was able to deal with the issues and the courts gave them a fair trial before hanging some of them.

    ?Where have we gone wrong.

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  6. Profile Photo Member

    Andy McCarthy explains that all of this is by design. The Administration wants to wish away the hard questions about how to deal with terrorism: <>

    That any of the news about the charging of the junior brother is a surprise should be an embarrassment to us all.

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  7. Profile Photo Member

    This link may work better for some:

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  8. Profile Photo Inactive

    Has there been any explanation regarding the Fed Mag’s interjecting himself into the process? It seems to have short circuited the interview/interrogation activity…duh!! Who the heck is this guy and what was his motivation and authority to pull this stunt?

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  9. Profile Photo Inactive

    After some googling I see the magistrate is a She. And she was accompanied by the fed prosecutor and the fed pd. Maybe the FBI refused the Mirandize dzhokhar. But to quote our next chief executive ..”.What difference does it make now…?”

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  10. Profile Photo Member

    The problem (in the first place) is that they officially charged him… because POTUS and Holder think that this is just a domestic law-enforcement matter and not a national security matter.

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