If it were a scene from 24, you know the side for which you'd be rooting. Two bombs have gone off on a crowded city street; hundreds were injured, several killed. The area crawls with SWAT teams. Following an intensive manhunt, the suspect lies gravely injured in a hospital bed, FBI agents surrounding him. If you're watching the show unfold, you're not screaming at the screen for interrogators to wait until the suspect gets a lawyer. You, the viewer, like the agents, want to know — need to know — whether there are more plots, more accomplices, more bombs. At that point in the story, nothing else matters. Human and legal rights be damned.
That's both the fun and danger of ideology-drenched shows like 24 — we understandably find ourselves desiring problematic behavior from our officials. But should that behavior cross into reality and government protocol? It seems plain that the FBI acted unconstitutionally in interrogating the then 19-year-old Boston Marathon bombing suspect Dzhokhar Tsarnaev and delaying his access to legal representation. The question, then, is whether a suspension of constitutional standards was appropriate in that instance.
According to a lawsuit filed by Tsarnaev's lawyers Wednesday, following his arrest in April 2013 Tsarnaev was denied repeated requests for a lawyer as he was continuously interrogated by FBI agents while complaining of his worsening medical condition due to gunshot wounds sustained to the head, face, throat, and jaw. Unable to speak, Tsarnaev wrote answers on a note pad. Defense attorneys were turned away from the hospital and federal agents lied to the suspect, saying his dead brother was still alive. All this before Miranda rights were read.
"Despite Mr. Tsarnaev’s entreaties to be left alone, allowed to rest, and provided with a lawyer, the agents persisted in questioning him throughout the night and into the [next] morning,” the filing claims. The suspect's lawyers are therefore urging that all of the statements Tsarnaev made before gaining access to a lawyer be considered inadmissible in the case against him. Tsarnaev faces a string of charges and the possibility of capital punishment if convicted. It's uncertain but highly unlikely that he would walk free if his post-arrest statements are struck. Furthermore, comments from US Attorney Carmen M. Ortiz suggest that Tsarnaev's motion will fail.
The risk of having a legal system that sanctions its own suspension is that these exception clauses will be abused.
In cases where there is a so-called "public safety exception," standard legal procedure can be suspended so that authorities can get immediate answers. It is a peculiar nuance of legal logic: The legal system contains within it the ability to suspend the law itself. The extra-legal gets to be legal. To argue that Tsarnaev's federal interrogators acted illegally in denying him his legal rights misses the point that so long as "exception" is invoked, what gets to be legal boundlessly expands.
Tsarnaev's early interrogation may be an excellent candidate for a public safety exception. But exemptions and exceptions more broadly occupy an uncomfortable place in US law; we need only consider extrajudicial drone killings, indefinite detentions without charge of Gitmo detainees, unconstitutional mass surveillance practices, and CIA torture. As I've written in the past, this is nothing new, as an ill-defined lexicon of "exception," "imminent threat," or "emergency" has long been the pretext for US authorities — from federal agents to presidents — to take on extraordinary sovereign powers. In the midst of the Civil War, President Abraham Lincoln enabled the suspension of habeus corpus along a military supply line to prevent a rumored sabotage.
The risk of having a legal system that sanctions its own suspension is that these exception clauses will be abused. Only the people in power get to determine — usually through opaque deliberation — what counts as exceptional. Tsarnaev's case may be a no-brainer in its exceptionality. But counterterrorism has often been a troubling blanket pretext for shady and downright despicable actions by the American military and executive. When engaged in an endless, borderless war fought against a concept (terror), there is always an exception (a state of war) authorities can use to suspend even the most basic rights afforded by law.
That is why Tsarnaev's legal challenge over his interrogation is important. It sheds light on how law operates in the muddy waters of the exception.
Follow Natasha Lennard on Twitter: @natashalennard
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