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IN MY OPINION . . .

"You have the right to remain silent . . . ."

The debate began soon after Dzhokhar Tsarnaev's capture. Should authorities treat the 19-year-old Boston terrorist, a naturalized U.S. citizen, as an "enemy combatant" or as a murder suspect?

If the former view prevailed, the theory was that he could be questioned for an indefinite period without the need to administer his Miranda rights; if the latter, it was the general consensus that there would be a short window of opportunity to question him without Mirandizing him, under the "public safety" exception to the Supreme Court-imposed Miranda rule.

If there is an imminent threat to public safety, a reasonable assumption in the Boston case, interrogators can try to lessen the danger by questioning a suspect about other bombs that may have been planted, for instance, or other conspirators still at large. But there would be a time limit—many put it at 48 hours—before the Miranda rule kicked in.

Under the enemy combatant theory, no such time limit would exist, at least that was the stated belief of proponents of that approach. Tsarnaev couldn't be tried by military tribunal—his U.S. citizenship precluded that—but he could still be questioned indefinitely until authorities had all they could get out of him, before he was Mirandized and got "lawyered up."

When an assistant U.S. attorney, a federal magistrate, and three federal public defenders barged into Tsarnaev's hospital room last week, the debate over procedure ended. A special terrorist interrogation team had been getting good intelligence from the cooperative young man. Then the judge read him his Miranda rights, and, probably on advice of his court-appointed lawyers, he clammed up. And he will remain uncooperative—any lawyer who advised otherwise would fail the competency test—until he gets a deal to avoid the death penalty.

Most of those advocating the "enemy combatant" route were conservative Republicans—the ones who, under different circumstances, rail about the federal government's disregard for the U.S. Constitution and its assault on our liberties. What bothers me is the hypocrisy of these folks, their selective embrace of some provisions of our Constitution, while ignoring others

I wonder what became of the writ of habeus corpus. If you had asked the 55 Framers at the Constitutional Convention in 1787, they would, to a man, have told you that the writ of habeus corpus was the most important protection of personal liberty in the original Constitution. (The Bill of Rights, contained in the first ten Amendments, was adopted and ratified a few years later.)

Under the writ, any citizen detained by the government shall be brought before an impartial magistrate within a reasonable period of time. The magistrate must then determine if the government has sufficient grounds to detain the prisoner. As part of that process, the magistrate would, undoubtedly, also inform the prisoner of his or her rights.

So, you see, even if the "enemy combatant" scenario had been followed, the writ of habeus corpus would have been in effect for Dzhokhar Tsarnaev, and he would have received his Miranda rights at that time.
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