Nate Silver has some statistics on public views on Mirandizing terrorists, and it's depressing (although I suppose not surprising). On this particular case, I don't want to comment too specifically except to just make a blanket statement that I obviously think Tsarnev should be accorded the full protections of the Constitution. I hesitate to get outraged at what's happened so far simply because my experience with Law and Order leads me to have some vague recollection that they can hold someone for a while without arresting them while looking into things, and I'm not sure how that works exactly. But those legalities aside (which they should exploit to the fullest as long as it's legal), he needs to be Mirandized if we're going to hold him.
This is not to say that all terrorists need to be Mirandized. If you have someone sent as a part of an orchestrated attack on the United States and they can therefore be reasonably designated as an enemy combatant, give them the Constitutional due process of an enemy combatant rather than the Constitutional due process of an accused felon by all means. But that needs to be established - as the Supreme Court told Bush - and I don't think some youtube videos posted by Tsarnev's brother establishes it. The military can always step in later and take custody of him if it looks like it makes sense to treat him as an enemy combatant.
Of course I may not know everything and they may already have all this information.
[UPDATE: Also, I heard he is currently unconscious? Is that true? Is it possible he is not Mirandized because of concerns around Mirandizing an unconscious person (how can we be sure he know his rights?)]
Also on rights:
- Obviously what happened on Friday (to say nothing of Monday) is something we're still all learning about, but my impression at the moment is that the lockdown was probably a policy mistake rather than a Constitutional mistake (as some people are framing it), at least when it comes to the whole city of Boston. My best understanding is that it was nothing like martial law and it was a request not an order, but I do find it a little absurd that areas outside Watertown were locked down at all. A general "be safe and report anything suspicious" probably would have sufficed outside of Watertown. This isn't meant to minimize the announcement. Just because it wasn't a Constitutional travesty doesn't mean it wasn't problematic. Knee-jerk reactions like that by government set precedents. I'm not especially worried about this reaction sending us down the road to serfdom, but I still think it was a mistake.
- As I understand it the door to door searches in Watertown generally happened with permission, so no fourth amendment issue there whatsoever. Those strange cases where residents did not give permission (I imagine most did - who wouldn't?) seem to have exigent circumstances attached which means it's also not a fourth amendment violation. This case is basically made by Katy Waldman at Slate too.
So generally speaking my biggest Constitutional concern right now is how they treat Tsarnev. I don't have a whole lot of those concerns around the search itself, although much of the search was probably ill-advised.
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