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The ‘Public Safety’ Follies

by Andrew C. McCarthy

….We have been seeing the wages of government-by-Gitmo Bar for over four years now, but maybe never as starkly as in the last few days.

It has now been reported by Fox’s Megyn Kelly that the FBI’s interrogation of accused Boston Marathon bomber Dzhokhar Tsarnaev was short-circuited when the Justice Department arranged for him to be given a presentment hearing in the hospital.

In point of fact, it was not the hearing that caused the suspension of vital intelligence-gathering. It was the Obama Justice Department’s decision over the weekend immediately to file a criminal charge against Tsarnaev. Once that was done, the presentment hearing was inevitable. It is required by Rule 5 of the federal rules of criminal procedure. An arrested person must be brought before the nearest available magistrate. The purpose of the proceeding is to get him out of the clutches of law enforcement, have a neutral judicial officer advise him of what he’s been charged with, make certain that he has counsel assigned, and – most significantly – ensure that he knows he is under no obligation to make statements to the police and that, if he has already made some statements, he may stop.

From a national security standpoint, there was no good reason to file a criminal charge so soon and thus trigger procedures that, as everyone involved in the decision well knew, would stop the interrogation. The only reason to do it is political: The Obama administration is philosophically hostile to the law-of-war counterterrorism paradigm. It is determined to regard every terrorist as a criminal defendant rather than an enemy combatant – even if there may be evidence connecting the detained terrorist to our wartime enemies and thus justifying, at least temporarily, an enemy-combatant designation that would allow interrogation to continue for intelligence purposes.

Therefore, in a palpable effort to end any public debate over Tsarnaev’s treatment, and to divert public attention away from what appear to be appalling lapses by the relevant agencies in the months since Tamerlan Tsarnaev got on their radar screen over a year before last week’s terror spree, the administration ran into court.

With a criminal complaint filed, the administration calculated, Dzhokhar Tsarnaev is a criminal defendant – no more need to talk about whether he should be a military detainee. And with the civilian prosecution commenced, the public attention could be shifted from the administration’s investigative lapses to the terrorist’s court proceedings.

But there is always a price to be paid. To start the civilian due process was to guarantee the premature end of the national-security interrogation. And on that score, the administration’s argument that the public safety exception to Miranda is an adequate substitute for the open-ended interrogation permitted under military detention is specious.

The administration would have you believe the public safety exception is a settled doctrine with bright-line rules that permit expansive post-arrest questioning without Miranda warnings or counsel. That is preposterous….

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