Boston Marathon bombing suspect not read Miranda rights; Justice Department's decision spurs debate

This image obtained courtesy of CBS News shows This image obtained courtesy of CBS News shows Dzhokhar Tsarnaev in the boat in a Watertown, Mass. backyard where authorities say he was found hiding. (April 19, 2013) Photo Credit: Getty Images / CBS NEWS

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The Obama administration's announcement that the Boston Marathon bombing suspect will be questioned by investigators without first being read his Miranda rights has rekindled a constitutional debate over the handling of terrorism cases in this country.

Federal officials say a special interrogation team for high-value suspects will question Dzhokhar Tsarnaev, invoking a rare public-safety exception aimed at protecting the public from immediate danger.

The Justice Department's decision alarmed advocates of individual rights at one end of the spectrum and disappointed some conservatives at the other.

"Every criminal defendant has a right to be brought before a judge and to have access to counsel," said Anthony Romero, executive director of the American Civil Liberties Union.

Romero said it would be acceptable for the FBI to ask the suspect, a naturalized U.S. citizen, about "imminent" threats, such as whether other bombs are hidden around Boston.

But he cautioned: "The public-safety exception should be read narrowly. It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule."

Miranda rights advise a suspect of the right to counsel and offer a warning about self-incrimination. The administration's decision is based on guidance from a 2010 Justice Department memorandum that said a delay in Miranda warnings was justified when suspected terrorists were captured in the United States.

Four Republican leaders outspoken on issues of national security -- including Rep. Peter King (R-Seaford) and Sen. John McCain (R-Ariz.) -- Saturday urged the Obama administration to go further -- treating Tsarnaev as an "enemy combatant" -- who can be detained indefinitely without charges -- and not a common criminal.

"The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans," they said.

King said investigators should be free to gather intelligence to protect the country from further attacks. "We need to find out if there are other explosives, if they operated on their own," he said. "There is so much to interrogate him about."

Senate Armed Services Committee chairman Carl Levin (D-Mich.) said he sees no legal basis for handling the bombing case as a military matter.

"I am not aware of any evidence so far that the Boston suspect is part of any organized group, let alone al-Qaida, the Taliban, or one of their affiliates -- the only organizations whose members are subject to detention under the Authorization for Use of Military Force, as it has been consistently interpreted by all three branches of our government," Levin said in a statement.

Eric M. Freedman, a constitutional law professor at Hofstra University, said the notion that the bombing case should be handled as a military matter is "completely outrageous."

"It's a slap in the face to the Constitution," he said. "There is no possibly sound theory in which this set of crimes should be prosecuted in any way other than the regular criminal justice system."

Vincent Henry, director of the Homeland Security Management Institute at Long Island University in Riverhead, said the decision shouldn't be a political one.

"I'm concerned that the decision of whether to prosecute [this matter] as a criminal act or an act of war will not be made based upon facts and evidence," he said.

With Robert Brosky

and wire service reports

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