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Beware what happens to your own rights when Boston bombing suspect is not read his Miranda rights and when some politicians urge sending him to Guantanamo.

22 Apr Beware what happens to your own rights when Boston bombing suspect is not read his Miranda rights and when some politicians urge sending him to Guantanamo.

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients.

The recent weeks have witnessed not only last week’s Boston bombings, but also reports of several instances of weapons violence in various other parts of the United States. The recent and ongoing violence in the world of course needs to be reversed. The temptation, though, to paint violent people and their cohorts as us versus them, with "them" having no rights to be treated as humans nor to be afforded the full protections of the Bill of Rights is a huge mistake.

Not long ago, a close family member was asked at a spiritual gathering how someone as kind as I am could do criminal defense work and gave a wonderful and on-point answer about the compassion I feel for all people, the need I feel to humanize everyone, and the need for everyone to feel humanized and to receive compassion and empathy. As Publius Terence said: Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me. Thich Nhat Hanh takes Publius Terrence a step further in his poem "Please Call Me by My True Names," recognizing that but for his fortune in experience, resources, compassion and wisdom from an early age, he could have become the child raped by a pirate as well as the pirate who raped her, "my heart not yet capable of seeing and loving."

Mitakuye Oyasin. We are all related, and it is an illusion and delusion to think otherwise. There is no them versus us in the final analysis. It is all we, including our perceived and actual opponents and enemies. Connectedness with each other is not some sort of touchy-feely approach to life, but a reality that, once recognized by more people, will reduce wars, violence upon others and trespasses against others, and will bring us towards a much better world where people will open their hearts to each other and share with each other of themselves and of their resources.

It appears that in an effort to obtain as much information as possible from surviving Boston bombing suspect Dzhokhar Tsarnaev, police have decided not to read him his Miranda rights to remain silent. Ordinarily, an arrested defendant’s non-Mirandized answers to police are inadmissible at trial. It appears that prosecutors may try to circumvent that limit by claiming the public safety exception enunciated, for instance, in New York v. Quarles, 467 U.S. 649 (1984). However the public safety exception must not be expanded beyond such circumstances as that in Quarles where a police officer asked a detained rape suspect, un-Mirandized, where his gun was. Quarles decided that the exigency of removing the gun from harm’s way overcame any right for Defendant to suppress his un-Mirandized statements.

 

However, Tsarnaev’s knowledge about risks of physical harm to others is so attenuated from the time and place of last week’s bombing that Miranda rights — already riddled with Supreme Court exceptions and erosions over the decades — will take a severe extra beating if the trial and appellate courts decline to suppress, from trial, Tsarnaev’s un-Mirandized answers to police questions.

 

The Fifth Amendment to the Bill of Rights to the United States Constitution is not just some sort of quaint guarantee drafted over two centuries ago. The Fifth Amendment includes the guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The foregoing Constitutional right is one of the most vital bedrocks of civil liberties in the United States.

 

On another civil liberties note, John McCain and various other politicians are calling for Dzhokhar Tsarnaev to be sent to Guantanamo to be treated and tried as an enemy combatant. The United States government imprisons people in Guantanamo partly in an effort to not afford inmates there the full force of the Bill of Rights, even though the Supreme Court has nevertheless extended some Constitutional rights to Guantanamo inmates. Guantanamo inmates, when they have trials, proceed before military courts rather than civilian courts, with severely shortchanged protections compared to those afforded criminal defendants in civilian courts in the United States.

 

On a more global matter, the United States’ lease of Guantanamo was inked and signed in a different era, before Fidel Castro took power over fifty years ago. It is beyond ironic that the United States has generally barred trade and travel with Cuba (other than welcoming its refugees  generally with open arms, which Fidel Castro took advantage of with the Mariel boatlift), but rubs its brute muscle in the face of Cubans by using their backyard for detaining and trying people intentionally outside of United States borders. After the Berlin Wall collapsed, no justification remained for the United States to remain in Guantanamo without the consent of Cuba’s government with or without a lease. (I understand that Britain had a lease for Hong Kong until it withdrew its government near the end of the last century, but have not yet checked how much that lease was a contract of colonial adhesion.)  As much as I am not enamored of Fidel Castro and the Cuban government, and abhor Cuba’s abysmal human rights practices, Cuba has the right to be a sovereign nation without the colonial appearances and actions of a United States military base on its soil that the Cuban government clearly does not agree to be in existence.

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