TAMPA, April 24, 2013 – Civil libertarians seemed to have cause for relief on Monday as reports were released that Boston Marathon bombing suspect Dzhokhar Tsarnaev had been formally charged with the crime, given a Miranda warning and assigned counsel.
Some prominent officials, including U.S. Senator Lindsey Graham, had called for Tsarnaev to be treated as an enemy combatant. The Obama administration indicated that it would prosecute the U.S. citizen in civilian court, but would invoke the public safety exception to the Fifth Amendment in questioning Tsarnaev before reading him his rights.
It appeared that justice had prevailed. Major news outlets reported that a bedside hearing had taken place, presided over by a judge, with counsel for the defense present. A transcript of the hearing is available online or in pdf above.
The bedrock legal principles that make America the “land of the free” had been preserved. Tsarnaev would be presumed innocent until proven guilty. He would have the benefit of counsel to challenge the government’s case against him, examine the evidence and cross examine any witnesses.
He would not be subject to punishment until he had been proven guilty in an adversarial proceeding, rather than merely accused.
There was only one problem. We now know that Tsarnaev had already confessed to the crime.
So, Tsarnaev had the right to remain silent only after there was no longer any reason to remain silent. That defeats the whole purpose of the Fifth Amendment. One of the reasons it was established was the routine use of torture in obtaining confessions in the Middle Ages.
So, how did federal authorities obtain Tsarnaev’s confession? Was he tortured? All we know is he was alone with federal authorities and helpless in his hospital bed.
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