The Justice Department's decision that it wouldn't read the Boston bombing suspect his Miranda warning right away sounds unconstitutional, but it's totally legal for the cops to deny anybody that warning.
Nineteen-year-old Boston Marathon bombing suspect Dzhokhar Tsarnaev has yet to hear that he has the right to remain silent or have an attorney before he's questioned, among other Miranda rights.
The Supreme Court ruled in 1966 that prosecutors couldn't use a defendant's own statements against him in court if he hasn't been advised of these rights.
Police are still perfectly free to question any suspect who hasn't been Mirandized. They just can't use anything the suspect says against him in a court of law until he has been.
And there's even an exception to that rule.
Police can use statements defendants made without getting Mirandized if they need to question a suspect in order to protect the public's safety, the Supreme Court ruled in 1984.
In October 2010, the FBI issued a guidance for how to apply this "public safety exemption" to terrorism suspects. The memo noted that "an arrest of an operational terrorist may warrant significantly more public safety interrogation" than ordinary criminal cases.
While that guidance would seem to apply to the Boston marathon suspect, the decision not to Mirandize him right away has spurred a debate over the rights of terrorism suspects.
Anthony D. Romero, who heads the American Civil Liberties Union, told The New York Times the FBI should only be questioning the non-Mirandized Tsarnaev about imminent threats like other bombs that might be planted.
“The public safety exception to Miranda should be a narrow and limited one, and it would be wholly inappropriate and unconstitutional to use it to create the case against the suspect,” Romero told The Times.
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