I mentioned in an earlier post that I think the case of Faisal Shahzad, who attempted to set off explosive devices in Times Square on May 1, 2010, may be an indicator of how the Government will proceed with Dzhokhar Tsarnaev. If so, he won't be meeting with a lawyer or seeing a judge anytime soon. He'll be whisked from the hospital to a safe house where he'll be convinced to sign waivers and consent to interrogation for up to two weeks -- if not longer.

Shahzad is a naturalized U.S. citizen who had been in the U.S. for ten years. He left the bombs in his car in Times Square on May 1. On May 3, he was arrested on a plane at JFK, before takeoff. Charges were filed (a complaint) on May 4.

Shahzad was not taken to a jail or before a judge. The Joint Terrorism Task Force took him to a safe house. They began interrogating him without providing Miranda rights. After a few days, they advised him of his rights. But they also convinced him to waive both his Miranda rights and his right to timely presentment before a judge (where he would be appointed counsel.) They kept him in the safe house, interrogating him, until May 18, when he finally appeared in front of a court and was appointed counsel. In a press release, U.S. Attorney Preet Baheera said:

Following his arrest, Shahzad spoke with officers of the Joint Terrorism Task Force for almost two weeks. During those weeks, Shahzad admitted that he had purchased all of the components of the bomb; built the bomb; and loaded it into his SUV. Shahzad also said that he believed that his bomb would kill about 40 people — and that he had been prepared to conduct additional attacks until he was captured or killed.

By May 18, when the Federal Defender was finally appointed, he'd already confessed.

The Indictment was returned on June 17, 2010. Four days later, Shahzad pleaded guilty to all counts without a plea agreement. His change of plea transcript is here.

In October, 2010, he was sentenced to life in prison (there is no parole). The transcript is here. He did not appeal and is serving his sentence at Supermax in Florence, CO.

At sentencing, for the first time, he complained that the Government violated his rights during his interrogation.

I had a firsthand experience when on the second day of my arrest I asked for the Miranda. And the FBI denied it to me for two weeks, effecting [threatening] harm to my kids and family, and I was forced to sign those Mirandas.

Of course, at sentencing, it's too late to raise that argument for the first time.

Attorney General Eric Holder explained the FBI's public safety exception policy in this 5 page letter to Congress about why it Mirandized underwear bomber Abdul Farouk Abdulmutallab after two days:

The initial questioning of Abdulmutallab was conducted without Miranda warnings under a public safety exception that has been recognized by the courts. Subsequent questioning was conducted with Miranda warnings, as required by FBI policy, after consultation between FBI agents in the field and at FBI Headquarters, and career prosecutors in the U.S. Attorney’s Office and at the Department of Justice.

Neither advising Abdulmutallab of his Miranda rights nor granting him access to counsel prevents us from obtaining intelligence from him, however. On the contrary, history shows that the federal justice system is an extremely effective tool for gathering intelligence. The Department of Justice has a long track record of using the prosecution and sentencing process as a lever to obtain valuable intelligence, and we are actively deploying those tools in this case as well.

Holder used these two cases to push Congress to pass a law officially recognizing the public safety exception. When his efforts met with resistance, the FBI published its own memo on how it would use the public safety exception, which the New York Times published here.

The federal circuit courts of appeal have been divided in their view of the scope of the public safety exception:

The First, Eighth, and Ninth Circuits apply a broad approach to the exception. This approach allows the exception to apply when there are “inherently dangerous circumstances posing a material threat to officers or the public, without regard to an immediate or objective threat.”

A narrow approach is taken by the Second, Fourth, Fifth, Sixth, and Tenth Circuits. Under this approach, courts require officers to have actual knowledge of an imminent threat to public safety before utilizing the exception.

...The remaining Circuits, the Third, Seventh, and Eleventh, have either “failed to properly address the issue or have inconsistently applied the Quarles exception.”

The Supreme Court has not yet resolved the differences. It should. The FBI memo is problematic. While it begins by tracking NY v Quarles, it goes much further. It provides:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.

....Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

That's what they did in Shahzad. Shahzad had lived here for 10 years. He worked as a financial analyst for Elizabeth Arden for 5 years. He had an MBA. Why would an intelligent, educated person waive his right to presentment before a judge, where he would be appointed counsel? Waiving Miranda is perhaps understandable if he wanted to brag about what he had done. But waiving his right to presentment and counsel? Followed by a straight-up guilty plea to all charges knowing he would get a life sentence, almost certainly at Supermax, Alcatraz of the Rockies?

How did they get him to do that? The only answer that comes to my mind is promises or threats. Promises to keep his family safe and/or threats there would be no protection for his family if he didn’t agree to their requests for more information and delayed presentment.

Shahzad spent two weeks undergoing questioning in a safe house by the FBI’s High Value Detainee Group, with no contact with the outside world, no lawyer, continuously being told what would happen to his family in Pakistan if he didn’t play ball. To call this a “public safety” exception makes a mockery not just of Miranda and the 5th Amendment right to remain silent and due process, but the 6th Amendment right to assistance of counsel.

The same strategy could easily be in play for Dzhokhar Tsarnaev. Consider the FBI’s unusual insistence on controlling the information about his medical condition. Is this so it can whisk him to a safe house, rather than a jail, for questioning, without the media finding out? Will it keep telling the public he is in serious condition in the hospital until well after he has been moved to his undisclosed location? After which they will present his signed waiver of his right to presentment before a judge (where a lawyer would be appointed) and waiver of Miranda rights? If Shazad is any indication, I think it is a clear possibility.

What will the interrogation team promise him in exchange? (Any promises would have to be made with the approval of DOJ since only proseuctors, not law enforcement agents, can make binding promises once charges are filed.) They could allow him to plead guilty to all charges, before a death penalty notice is filed, ensuring he gets a life sentence, rather than death. They could tell him horror stories about what might befall his parents or relatives here and in Russia if he refuses to waive his rights. They could scare him with descriptions of physical atrocities that will be inflicted on him by other inmates in a maximum security prison, given his age and size. He is 19 years old. He won’t know he’d never be put in general population at a detention facility while awaiting trial. Or that after conviction, if sent to Supermax, he’ll be in isolation for years before being allowed contact with other inmates.

It took 14 days for the federal court in New York to appoint counsel for Faisal Shazad due to his waiver. That is unacceptable. If the Government plays its cards the same way with Dzhokhar Tsarnaev, and files charges, and then a waiver of his right to presentment and Miranda rights before his first appearance, I don’t know how the federal court in Massachusetts will respond. I hope it responds by appointing the Federal Defender’s office immediately upon the filing of charges, and directing the Government to make Dzhokhar available to meet with counsel before accepting any such waivers as having been made knowingly, voluntarily and free of coercion.

The Government’s combined use of the public safety exception and presentment and Miranda waivers goes far beyond the issue of the admissibility of uncounseled statements at trial. By using the pretext of public safety to gather intelligence information, after it is satisfied the particular suspect no longer poses an immediate threat to public safety, and insisting the suspect waive his constitutional right to representation by counsel at the initiation of judicial proceedings, the Government is violating the most basic of all constitutional protections. It is going far beyond the bounds of the Supreme Court's ruling in Quarles.

Keeping the country safe from a 19 year old suspect in custody, whose alleged partner in crime is dead, when police believe the two acted "together and alone" does not justify shredding the Constitution.