“No Miranda warning to be given” now, the DOJ official said. Terror suspect: 5 legal questions

With Dzhokhar Tsarnaev taken alive, the focus now turns to how the Obama administration is going to seek to bring the Boston Marathon bombing suspect to justice.

Lawyers have already made one potentially critical decision: He hasn’t been read his Miranda rights, at least for now. This means that FBI investigators may have a shot at trying to question him about other potential plots he may be aware of and whether anyone other than his deceased brother was involved in last Monday’s bombing or Thursday night’s crime spree.


But if Tsarnaev’s injuries leave him incapacitated for a protracted period of time, the Miranda issue may be of less significance.

( PHOTOS: Boston celebrates capture)

As soon as he’s coherent, he’s likely to go before a judge or magistrate, even in the hospital. The judicial officer will formally advise Tsarnaev of the preliminary charges used to detain him and tell of his right to an attorney, even if investigators haven’t done that by then.

On Sunday, Boston Police Commissioner Ed Davis said Tsarnaev was still in stable but serious condition and has not been questioned yet. “He’s in no condition to be interrogated at this point in time,” Davis said on “Fox News Sunday.” “He’s progressing, though, and we’re monitoring the situation carefully.”

( Also on POLITICO: Pols celebrate, reflect on capture)

One tricky issue now is how prosecutors and the FBI will balance the duty to get Tsarnaev before a judge promptly with their desire to do the initial public-safety interview.

Meanwhile, a host of other questions are already bubbling up, from whether he’ll be tried in civilian or military court to whether he’ll face the death penalty for crimes that include killing three people in the explosions and a police officer on the MIT campus.

( Also on POLITICO: Obama praises arrest in Boston blasts)

Here’s POLITICO’s guide to the five key questions — and what’s known about the answers — that are ahead.

1. Why does the Miranda issue matter?

After the Justice Department decided not to immediately read Tsarnaev his Miranda rights, a debate broke out among lawmakers, lawyers and political activists over whether the suspect, Dzhokhar Tsarnaev, 19, should be prosecuted in a civilian criminal court or subjected to military interrogation — and over when and whether Tsarnaev should be told about his right to an attorney.

“No Miranda warning to be given” now, a Justice official told POLITICO Friday. “The government will be invoking the public safety exception.”

That may increase the possibility that Tsarnaev will quickly offer up information about whether he and his brother, who was killed in a shootout Thursday, acted alone in the bombings or whether they were directed, supported or trained by forces abroad.

Beginning several hours before Dzhokhar Tsarnaev’s capture, Sen. Lindsey Graham (R-S.C.) wrote on Twitter that the suspect ought to be placed in military custody.

“If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes,” Graham wrote Friday afternoon. “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.’”

“The Law of War allows us to hold individual in this scenario as potential enemy combatant w/o Miranda warnings or appointment of counsel,” the senator added later in the evening. “I hope the Obama Administration will seriously consider this option … The goal is to gather intelligence and protect our nation which is under threat from radical Islam.”

“NBC reporting Obama admin will treat terrorist as a ‘criminal’ and not enemy combatant,” former State Department official Liz Cheney wrote on Twitter Friday night. “Will Obama allow him to lawyer up?”

The Center for Constitutional Rights condemned the decision in a statement: “The Miranda warnings were put in place because police officers were beating and torturing ‘confessions’ out of people who hadn’t even been formally accused of a crime. We cannot afford to repeat our mistakes. If officials require suspects to incriminate themselves, they are making fair trials and due process merely option and not a requirement. To venture down that road again will make law enforcement accountable to no one.”

Senate Armed Services Committee Chairman Carl Levin said he saw no legal basis for holding the suspect as an enemy combatant.

”I am not aware of any evidence so far that the Boston suspect is part of any organized group, let alone al Qaeda, 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,” the Michigan Democrat said in a statement on Saturday.

2. How does the public safety exception work?

The Obama administration appeared to be taking a middle course, holding off on advising Tsarnaev of his rights, but still directing him into the criminal justice system for prosecution.

The DOJ signaled that it planned to rely on a 1984 Supreme Court case that said a suspect’s statements can be used against him even if he was not immediately read his rights if police got the answers while asking questions aimed at averting a threat to public safety.

The precise contours of that exception in a terrorism case are not clear, although a judge upheld that exception in connection with questioning of the so-called underwear bomber on a Delta flight bound for Detroit on Christmas Day 2009.

Still, some experts said holding off on reading Tsarnaev his rights was ill-advised, particularly since law enforcement officials declared that after the suspect’s arrest the threat to the public was over.

“The FBI is making a serious mistake by not giving him his Miranda warning … Let’s not give him any excuse to be able to successfully argue that his rights were denied,” Harvard Law professor Alan Dershowitz said on CNN.

If a court found that Tsarnaev was not read his Miranda rights, the usual consequence would be that any statements he made prior to being read his rights could not be admitted at trial. However, prosecutors might not need such statements if they have overwhelming evidence of Tsarnaev’s guilt.

During a news conference shortly after the suspect was captured, U.S. Attorney for Massachusetts Carmen Ortiz did not directly confirm that the suspect was not read his rights. However, she noted the law allows for exceptions. “There is a public safety exemption in cases of national security and potential charges involving acts of terrorism,” Ortiz said.

The American Civil Liberties Union said in a statement: “Every criminal defendant is entitled to be read Miranda rights. 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. Additionally, every criminal defendant has a right to be brought before a judge and to have access to counsel.”

3. Will prosecutors seek the death penalty — and will Tsarnaev get it?

Under federal law, there’s little doubt Tsarnaev could be eligible for the death penalty. Using a weapon of mass destruction, such as a bomb, in an attack that results in death can lead to capital punishment.

While it might seem a foregone conclusion that the federal government will seek the death penalty in such a high-profile case, one stemming from a terror spree that killed four and left more than 170 injured, that decision is less of a sure thing than many people would think.

Ortiz indicated Friday that call was a long way off.

“Before that kind of a decision is made, in terms of whether or not to seek the death penalty, you review all of the evidence and it’s a very thoughtful, long process that is engaged and it’s the attorney general of the Department of Justice that makes that final decision,” Ortiz said in response to a question at the news conference that followed Tsarnaev’s capture Friday night.

As prosecutors consider whether to seek the death penalty, they’ll consider aggravating and mitigating circumstances. Under federal law, attempting multiple murders, “heinous, cruel, or depraved” acts or those that are the product of “substantial planning and premeditation” can lead to the death penalty. However, Tsarnaev’s lawyers will be able to argue that his mental capacity was impaired, that he may have been under the “duress” of his elder brother or that his participation in the offense was “relatively minor.”

The prosecution might also enter into a plea bargain for a life sentence in order to avoid the risks of a trial, particularly if an insanity defense seems plausible.

Tsarnaev won’t face the death penalty under state law because Massachusetts does not have capital punishment. That could also complicate the DOJ’s thinking on the issue. Under Democratic administrations, the feds have generally been reluctant to pursue the death penalty in states that don’t have capital punishment. However, President George W. Bush’s administration did so.

President Barack Obama supports the death penalty. Attorney General Eric Holder issued guidelines discouraging federal capital cases in states that don’t have the death penalty, but the DOJ is currently pursuing such a case in Puerto Rico.

Of course, prosecutors would also have to get a jury to unanimously agree that death, and not life in prison, was the correct penalty for the crimes.

4. What kind of court will Tsarnaev be tried in and how soon will he show up there?

When Ortiz said her office would “continue to evaluate and file our formal charges,” she also seemed to imply that Tsarnaev would face justice in a civilian federal court.

At the moment, the debate over Tsarnaev’s Miranda rights may be moot because, according to police, he was severely injured and bleeding at the time he was captured. When answering a question about the public safety exemption, Ortiz added: “Right now, I believe though, the suspect has been taken to a hospital.”

A joint FBI/CIA interrogation unit that Obama established to handle terrorism cases has been activated and is on the scene, the DOJ official added. “The high value detained interrogation group is on site,” the official said.

Regardless of when or if Tsarnaev is Mirandized, if he asks for an attorney, questioning of him will be required to stop. Lawyers who attempt to question him or direct questioning of him once he asks for an attorney would be violating legal ethics and DOJ policy.

While some legal experts said Friday that Tsarnaev would most likely make a court appearance by Monday, if investigators want more time to question him, they could ask him to delay his presentation in court. Such waivers have been obtained in a series of recent terrorism cases, including that of Times Square bomber Faisal Shahzad in 2010 and the ongoing prosecution of Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith.

At Tsarnaev’s initial appearance in court, a judge or magistrate will advise him of his rights and make sure he has access to a defense lawyer.

In 2010, the Obama administration floated the idea of legislation that would allow it to delay taking arrested terrorism suspects to court for about two weeks without getting any waiver from the person involved. However, the administration appeared to drop the idea a few months later, apparently satisfied that it had the flexibility it needed in existing law.

5. The FBI says Tsarnaev is a naturalized citizen — what difference will that make?

Graham’s proposal that Tsarnaev be put in military custody faced one significant obstacle: The man reportedly became a U.S. citizen last year. That would preclude prosecuting him under the current military commissions law, since U.S. citizens are explicitly outside its jurisdiction.

Whether Tsarnaev could legally be interrogated or detained by the military raises legal questions the Supreme Cout has never definitively addressed. Under President George W. Bush’s administration, U.S. citizen Jose Padilla was held in military custody as an enemy combatant for more than 3½ years on suspicion he planned to detonate a radioactive “dirty” bomb in Chicago.

The U.S. Court of Appeals for the 4th Circuit upheld Padilla’s detention in 2005, but after his lawyers asked the Supreme Court to take up the case, the Bush administration had Padilla indicted on unrelated criminal charges in an apparent effort to avoid a definitive ruling on the issue of whether citizens can be detained. The Supreme Court eventually declined to consider the issue of Padilla’s military detention.

Graham contends that a 1942 Supreme Court decision upholding a military trial for Nazi saboteurs who landed in Long Island during World War II authorizes the detention of Americans as enemy fighters. One of the men in the WWII case was a U.S. citizen.

However, in a floor debate last year, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) argued that the justices never considered the right to hold an American arrested on U.S. soil as an enemy combatant. She also said holding an American in military custody could violate a 1971 law that says citizens can only be imprisoned or detained pursuant to a duly-passed law.

Another potential obstacle to military detention: It’s also unclear whether Tsarnaev is connected with any group related to the Sept. 11, 2001, attacks or to the Taliban in Afghanistan. Those are affiliations that can render someone eligible for detention under the Authorization for Use of Military Force passed soon after the attacks.