There seems to be enormous pressure, in and out of government, to treat this suspect like an international terrorist, whether he is one or not. Federal
officials want to do so because it's the post 9/11 narrative for which they have planned. Listening to the breathless media coverage Friday, for the
hours upon hours where nothing was happening, one could almost sense from the Beltway consultants and analysts as well a collective willing of this case to
morph into an Al Qaeda one. What was the basis for the speculation? A few videos on a website. A visit to Chechnya. Yet when the FBI interviewed the older
brother in 2011, reported CBS News'
Bob Orr, they found no incriminating information.
It's still early, but I have yet to read anything from anyone who knows anything
about this case that explains what exactly is so illogical about the words reportedly uttered Friday by Chechnya leader
Ramzan Kadyrov, who said of the Tsarnaevs: "They grew up in the USA, their views and convictions were formed there. The roots should be looked for in
America." I realize this isn't what America wants to hear this morning. And I realize Kadyrov is highly motivated to deflect blame away from his country.
But what do we know about these two brothers today that makes it wrong?
Tsarnaev was apprehended 18 years to the day that Timothy McVeigh was arrested as he was speeding away from the Alfred P. Murrah Federal Building in
Oklahoma City. Perhaps Attorney General Eric Holder will correct me if I am wrong-- he should know, he was Deputy Attorney General in 1997 when the bombing
trials were held in Denver-- but there was no "public safety exception" delay inMirandizing McVeigh or Terry Nichols. This is how far the
constitutional requirement has eroded in less than a generation without a single United States Supreme Court decision to say so. I don't doubt that this
Court would today sanction such a broader interpretation of the rule. But so far it hasn't.
Even as Washington seeks to fit this story into a larger narrative, the Obama Administration has recognized that this is more like a blended case--
domestic terrorism with an international flavor, you could say. So, "public safety exception" or not, Tsarnaev can thank Jose Padilla for whatever
constitutional rights he will receive in the next few days and weeks. Padilla, too, was a U.S. citizen, apprehended on American soil, accused of a
form of terrorism. But Padilla, whose alleged plot never came close to fruition, was thrown into military detention, for years, and deprived of basic due process rights until the federal courts
belatedly forced Bush officials to turn him over to civilian custody. The Tsarnaev case starts where Padilla case ended. And Tsarnaev's U.S citizenship
makes a big difference -- politically and legally.
All that said, this is not likely a case where the defendant's confession is going to be dispositive. The feds won't likely need to introduce at
Tsarnaev's trial(s) any "confession" or other incriminating statements he may theoretically make before he is informed of his right to remain silent and of
his right to a lawyer. Just think of the eyewitnesses, and the video surveillance, both from Monday and from late Thursday night, which would likely be
used against him in a court of law. Just think of the physical evidence that links him to his alleged crimes. There is, as Bazelon says, good reason to be
concerned about the Miranda "exception" swallowing the rule. But there is little reason to think it will unduly prejudice Tsarnaev in this case.