There is zero legal or ethical justification for denying a suspect in custody this fundamental right
(updated below)
The initial debate over the treatment of Dzhokhar Tsarnaev focused on whether he should be advised of his Miranda rights or whether the "public safety exception" justified delaying it. In the wake of news reports that he had been Mirandized and would be charged in a federal court, I credited the Obama DOJ for handling the case reasonably well thus far. As it turns out, though, Tsarnaev wasn't Mirandized because the DOJ decided he should be. Instead, that happened only because a federal magistrate, on her own, scheduled a hospital-room hearing, interrupted the FBI's interrogation which had been proceeding at that point for a full 16 hours, and advised him of his right to remain silent and appointed him a lawyer. Since then, Tsarnaev ceased answering the FBI's questions.
But that controversy was merely about whether he would be advised of his Miranda rights. Now, the Los Angeles Times, almost in passing, reports something which, if true, would be a much more serious violation of core rights than delaying Miranda warnings - namely, that prior to the magistrate's visit to his hospital room, Tsarnaev had repeatedly asked for a lawyer, but the FBI simply ignored those requests, instead allowing the interagency High Value Detainee Interrogation Group to continue to interrogate him alone:
"Tsarnaev has not answered any questions since he was given a lawyer and told he has the right to remain silent by Magistrate Judge Marianne B. Bowler on Monday, officials said."Until that point, Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule."
Delaying Miranda warnings under the "public safety exception" - including under the Obama DOJ's radically expanded version of it - is one thing. But denying him the right to a lawyer after he repeatedly requests one is another thing entirely: as fundamental a violation of crucial guaranteed rights as can be imagined. As the lawyer bmaz comprehensively details in this excellent post, it is virtually unheard of for the "public safety" exception to be used to deny someone their right to a lawyer as opposed to delaying a Miranda warning (the only cases where this has been accepted were when "the intrusion into the constitutional right to counsel ... was so fleeting – in both it was no more than a question or two about a weapon on the premises of a search while the search warrant was actively being executed"). To ignore the repeated requests of someone in police custody for a lawyer, for hours and hours, is just inexcusable and legally baseless.
As law school dean Erwin Chemerinsky explained in the Los Angeles Times last week, the Obama DOJ was already abusing the "public safety" exception by using it to delay Miranda warnings for hours, long after virtually every public official expressly said that there were no more threats to the public safety. As he put it: "this exception does not apply here because there was no emergency threat facing law enforcement." Indeed, as I documented when this issue first arose, the Obama DOJ already unilaterally expanded this exception far beyond what the Supreme Court previously recognized by simply decreeing (in secret) that terrorism cases justify much greater delays in Mirandizing a suspect for reasons well beyond asking about public safety.
But that debate was merely about whether Tsarnaev would be advised of his rights. This is much more serious: if the LA Times report is true, then it means that the DOJ did not merely fail to advise him of his right to a lawyer but actively blocked him from exercising that right. This is a US citizen arrested for an alleged crime on US soil: there is no justification whatsoever for denying him his repeatedly exercised right to counsel. And there are ample and obvious dangers in letting the government do this. That's why Marcy Wheeler was arguing from the start that whether Tsarnaev would be promptly presented to a federal court - as both the Constitution and federal law requires - is more important than whether he is quickly Mirandized. Even worse, if the LA Times report is accurate, it means that the Miranda delay as well as the denial of his right to a lawyer would have continued even longer had the federal magistrate not basically barged into the interrogation to advise him of his rights.
I'd like to see more sources for this than a single anonymous Congressional aide, though the LA Times apparently concluded that this source's report was sufficiently reliable. The problem is that we're unlikely to get much transparency on this issue because to the extent that national politicians in Washington are complaining about Tsarnaev's treatment, their concern is that his rights were not abused even further:
"Lawmakers were told Tsarnaev had been questioned for 16 hours over two days. Injured in the throat, he was answering mostly in writing.
"'For those of us who think the public safety exemption properly applies here, there are legitimate questions about why he was [brought before a judge] when he was,' said Rep. Adam B. Schiff (D-Burbank), a former federal prosecutor who serves on the House Intelligence Committee.
"Rep. Mike Rogers (R-Mich.), chairman of the committee, wrote Atty. Gen. Eric H. Holder Jr. asking for a full investigation of the matter, complaining that the court session 'cut off a lawful, ongoing FBI interview to collect public safety information.'"
So now the Washington "debate" is going to be whether (a) the Obama DOJ should have defied the efforts of the federal court to ensure Tsarnaev's rights were protected and instead just violated his rights for even longer than it did, or (b) the Obama DOJ violated his rights for a sufficient amount of time before "allowing" a judge into his hospital room. That it is wrong to take a severely injured 19-year-old US citizen and aggressively interrogate him in the hospital without Miranda rights, without a lawyer, and (if this report is true) actively denying him his repeatedly requested rights, won't even be part of that debate. As Dean Chemerinsky wrote:
"Throughout American history, whenever there has been a serious threat, people have proposed abridging civil liberties. When that has happened, it has never been shown to have made the country safer. These mistakes should not be repeated. Dzhokhar Tsarnaev should be investigated, prosecuted and tried in accord with the US Constitution."
There is no legal or ethical justification for refusing the request for someone in custody to have a lawyer present. If this report is true, what's most amazing is not that his core rights were so brazenly violated, but that so few people in Washington will care. They're too busy demanding that his rights should have been violated even further.
UPDATE
In March of last year, the New York Times' Editorial Page Editor, Andrew Rosenthal - writing under the headline "Liberty and Justice for Non-Muslims" - explained: "it's rarely acknowledged that the [9/11] attacks have also led to what's essentially a separate justice system for Muslims." Even if you're someone who has decided that you don't really care about (or will actively support) rights abridgments as long as they are applied to groups or individuals who you think deserve it, these violations always expand beyond their original application. If you cheer when Dzhokhar Tsarnaev's right to counsel is denied, then you're enabling the institutionalization of that violation, and thus ensuring that you have no basis or ability to object when that right is denied to others whom you find more sympathetic (including yourself).