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All Da King's Men

Boston Bomber Constitutionality Issues

By David King Published: April 23, 2013

I'm reading all sorts of wild speculation on the internet about how the Boston authorities created a police state in their hunt for the Boston bombing suspect. Online Chicken Littles, whose legal expertise must come from watching episodes of Law And Order on the boob tube, think the Boston authorities acted in violation of the Constitution when they went on a house-to-house search for the bomber without first obtaining warrants. I'm also hearing about how the evil United States is going to strip the bomber of his civil rights by not mirandizing him, and then we're going to make him an enemy combatant so we can torture him and stick him in Gitmo until the end of time. Pretty doubtful.

Let's start with the police searching houses. The Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Thus, the police DID violate the Constitution when, in pursuit of the bomber, they entered people's houses without a warrant...right ?

Wrong.

The Fourth Amendment prohibits unreasonable searches without a warrant. It doesn't prohibit all searches. One of the established exceptions to the Fourth is something called exigent circumstances. Exigent means "urgent". When the police are in hot pursuit of a suspect who is a danger to the public, it isn't practical for the police to stop their pursuit, go to a judge, and obtain a warrant. Threats to public safety (such as an armed bomber running around loose) require an immediate response from the police. The requirement for a warrant is waived.

Next, the Miranda requirement, based on the Fifth Amendment proscription against self-incrimination. It was reported that the Obama administration delayed  reading the Boston bomber his Miranda rights ("you have the right to remain silent", etc). They wanted to ask him some questions first. This was cited as another egregious constitutional violation by the online Chicken Little teevee legal eagles. However, there is an exception to Miranda, just like there are exceptions to the Fourth Amendment. The exception to Miranda is the public safety exception. Under this exception, police officers may ask pre-Miranda questions of a suspect if the lives of the police or others are at risk. In the case of the Boston bomber, the public safety aspect should be fairly obvious. Two pre-Miranda public safety questions come immediately to mind - 1) Are there any more bombs planted anywhere ? 2) Are there any other members of your little bomb squad who are poised to strike ?

The Obama administration expanded the public safety exception to 48 hours, which seems to be pushing the limits of the exception, but perhaps that was due to the bomber suspect's injuries.

As is said, the Constitution is not a suicide pact. Public safety comes first. That's why there are exceptions to our constitutional rights. You can't yell "fire" in a crowded theater (exception to First Amendment). You can't shoot off your gun in a crowded theater either (exception to Second Amendment). We have rights, but they are not absolute. We temper them with common sense.

After the delay, the bomber suspect was read his Miranda rights. He is an American citizen, and he will be tried in civilian court, as required by law. A group of Republican Senators wanted him to be treated as an enemy combatant, which would have given the government more time to gather intelligence from him. An immediate problem arises there. The Obama administration retired the term "enemy combatant" in 2009, even though it retained the associated powers to detain. Obama's new policy is described:

The Justice Department said yesterday that it would seek to hold only terrorism suspects who "substantially supported" those [terrorist] groups and not those who "provide unwitting or insignificant support" to al-Qaeda and the Taliban.

I have no way of knowing what the bombing suspect has communicated to the authorities since his capture (and I doubt the Republican Senators do either), but the administration apparently feels he doesn't meet the criteria for detention as a whatever-we-call-enemy-combatants-now.

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