Trashing the Bill of Rights

If the evidence establishes the guilt of 19 year-old Dzhokhar Tsarnaev, the younger of the two Boston bomber suspects, then by all rights he should be held to pay for his crimes in accordance with the law. He should be subject to any just punishment the law allows.

 

That goes without saying.

 

What should also go without saying are the constitutional requirements that this criminal suspect shall not be compelled by government authorities to be a witness against himself, and shall not be deprived of his right to have the Assistance of Counsel for his defense throughout the entire process after his arrest and while in custody.

 

In the rush to convict and punish the infamous Boston bomber here, this suspect has so far been denied both of those rights. If that can happen to him it can happen to anyone accused of a crime, including you and me.

 

The Bill of Rights is being trashed in the United States of America.

 

The Fifth Amendment clearly provides that: No person shall … be compelled in any criminal case to be a witness against himself …

 

Likewise, the Sixth Amendment clearly provides that: In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.

 

Both of these fundamental constitutional rights are applicable immediately upon arrest and all the while the accused is in custody.

 

The well known Miranda v Arizona Supreme Court case was decided for the expressed purpose of implementing these rights, i.e. making sure the government authorities respect the Bill of Rights. Thus, the government authorities have a duty to administer the so-called Miranda warnings to criminal suspects, advising them of their right to remain silent and their right to an attorney before any interrogation.

 

Miranda created a presumption that "interrogation in custodial circumstances is inherently coercive" and that statements obtained under those circumstances "are inadmissible unless the subject is specifically informed of his Miranda rights and freely decides to forgo those rights."

 

The fifth and sixth Amendments mention no exceptions, but in typical fashion the government authorities with the eager assistance of the United States Supreme Court, frequently ignore these facts and carve out imaginary exceptions in the interest of expediency and manufactured necessity.

 

So the court, in 1980, invented the “Public Safety” exception to the Miranda rule and the fifth and sixth amendment requirements. This exception arose out of the case of New York v. Quarles, in which the police were chasing an armed suspect who hid his gun amongst grocery items on a supermarket shelf just before he was captured.

 

 

A police officer, before administering his Miranda rights, asked him where the gun was hidden and the suspect told him. The Supreme Court ruled that both the incriminating statement and the gun were admissible in evidence against him at trial because the officer needed an answer to the question about the location of the gun to ensure that its concealment in a public location would not endanger the public.

 

Thus, according to the Court, without regard to the actual motivation of the individual officers, Miranda need not be strictly followed in situations "in which police officers ask questions reasonably prompted by a concern for the public safety." The Court also made clear that only those questions necessary for the police "to secure their own safety or the safety of the public" were permitted under the public safety exception

 

Voluntariness is the linchpin of the admissibility of any statement obtained as a result of government conduct. Thus; statements obtained by the government under the public safety exception cannot be coerced or obtained through tactics that violate fundamental notions of due process.

 

The Quarles case makes clear that the public safety exception is strictly limited to the immediate exigent circumstances. There is no legal authority as far as I know that allows the government authority to hold a suspect in custody for hours, days, weeks and even months – indefinitely -- for the purpose of interrogating him without an attorney present.

 

But that is exactly what is happening right now with Dzhokhar Tsarnaev, the Boston bomber suspect. He’s being held incommunicado for questioning without an attorney. News reports indicate that the authorities intend to question him at length about his personal associations, his motives, his connections to terrorist groups and the like, none of which falls within the ambit of the public safety exception.

 

This man is an American citizen. This could be you or me. Suppose he is aware of his rights to remain silent and have an attorney; will the authorities stop the questioning if he invokes his rights? Will they respect his constitutional rights? Will they allow him an attorney?

 

Or will they torture him as they definitely have done with other suspected terrorists? Will he be water boarded; deprived of sleep; threatened; coerced? I think there is an excellent chance of that and that is exactly the kind of thing that the Fifth and Sixth Amendments were intended to prevent.

 

Senator Lindsey Graham and other bellowing hard-line foaming at the mouth politicians are even demanding that this American citizen be declared an “enemy combatant” and thereby deprived of any and all rights. For the purpose of expediency they think they have the right to just declare people enemy combatants so they don’t have to deal with the Bill of Rights. The War on Terror against phantom enemies they believe gives them that right.

 

They’re trashing the Bill of Rights.