Michael Mukasey, U.S. attorney general from 2007 to 2009 under President George W. Bush and a former federal judge, says both President Obama and some key Republicans are focused on the wrong legal issues in dealing with Boston bombing suspect Dzohkhar Tsarnaev.
“My view is they can [interrogate him] anytime even after he gets indicted and has a lawyer,” Mr. Mukasey said. “…They can go in with a clean team and ask him whatever they want to ask him and take as much time as they’d like so long as nothing that he says [to intelligence officials] is used for his criminal trial.”
Mr. Tsarnaev, who is suffering from a neck wound and recovering in the hospital, on Monday was charged with one count of using and conspiring to use a weapon of mass destruction. He will be tried in federal court and could receive the death penalty or life in prison.
Some Republicans, such as Sens. Lindsey Graham and John McCain, want the federal government to deem Tsarnaev an enemy combatant so intelligence authorities can hold him for as long as they deem necessary to interrogate him.
But Mr. Mukasey says such a designation is unneccessary because President Obama already has the Constitutional authority to direct intelligence authorities to question him indefinitely.
As long as those officials questioning him for interrogation purposes are separate from prosecutors aiming to use the information against him at trial, the intelligence gathering should not impact Tsarnaev’s court case in any way, Mr. Mukasey argues. Intelligence officials also must not diclose any information they glean to prosecutors, he stressed.
Doing so would be a terrible and easily avoidable mistake, Mr. Mukasey said, because prosecutors already have plenty of evidence to convict Mr. Tsarnaev – from his admission about his participation in the bombings to the man he carjacked to the video tape of he and his brother putting down their backpacks at the finish line-area of the Boston marathon.
“That’s like giving ice away in the winter time,” he said. “They don’t need the guy’s statement. Let’s say his admission or statements they get are not admissible at trial. They already have a ton of evidence against him.”
But Mr. Mukasey also disagrees with the Obama administration’s focus on Miranda law – Tsarnaev’s right against self-incrimination and to have an attorney present when questioned.
Until last night when authorities read Tsarnaev his Miranda rights, the suspect was held for three days under a public-safety exception to the Miranda law.
The public-safety exception permits law enforcement to engage in “limited and focused unwarned interrogation” and allows the government to introduce the suspect’s statements during interrogation as direct evidence in any subsequent criminal trial.
Mr. Mukasey says the Obama administration relied on the public-safety exception, which is fleeting and only applies if there is an identifiable, imminent, ongoing threat, for too long.
“It’s not like filing for an extension on your taxes,” he said.
But Republicans should not be overly concerned with the decision to Mirandize Tsarnaev, Mr. Mukasey said.
Giving him an attorney could delay interrogations but most likely only very briefly. Because the suspect was apprehended on U.S. soil, his attorney can file a habeas corpus petition, inquiring into the right of the government to continue to hold him, a legal procedure that doesn’t take too long or change his status.
Miranda law doesn’t even require Tsarnaev’s lawyer to be in the room during intelligence interrogations, Mr. Mukasey said, as long as intelligence officials don’t disclose information from those interrogations to those prosecuting his case.