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Concerns Raised With Legal Issues In Bombing Case


This is WEEKEND EDITION from NPR News. I'm Rachel Martin. The surviving suspect in the Boston Marathon bombings remains hospitalized this morning. He's being treated for injuries sustained in a gun battle with police leading up to his capture. At the same time - the legal case against 19-year-old Dzhokhar Tsarnaev is taking shape.

The Obama administration announced that it would question Tsarnaev without first reading him the Miranda Rights - the right to remain silent and have a lawyer present when questioned. The case has already stirred a debate over how the U.S. prosecutes terror suspects.

John Ashcroft was at the center of that debate as President George W. Bush's attorney general. He led the Department of Justice in the aftermath of the September 11th attacks and put in place a framework for prosecuting accused terrorists. John Ashcroft joins us from member station KSMU in Springfield, Missouri. Welcome to the program.

JOHN ASHCROFT: Good morning.

MARTIN: The Obama administration is invoking something called the public safety exception. Can you explain the legal argument for this exception?

ASHCROFT: Well, the legal argument for the exception is that in times of exigency, where the public might be endangered, it is possible to interrogate an individual at some level in order to relieve the public of the danger without first having given the Miranda Warning.

There are serious questions about at what point does the administration of the warning become a necessity. As I tell my law students, you don't want to get evidence that would be very valuable, maybe essential to a conviction, which is excluded based on the fact that a Miranda Warning was not given or improperly given.

MARTIN: Well, let's talk about how long they can actually use this exclusion. I mean, by not issuing the Miranda Warning, the suspect is not given the right to an attorney.

ASHCROFT: Well, let's put this in perspective. It doesn't appear that there is any shortage of evidence here, even evidence unrelated to anything he might say. So it could well be that there would be plenty of evidence upon which to base this conviction. If he were never given a Miranda Warning, it's pretty clear that there is an eyewitness carjacking victim who could identify him and provide information.

And there's probably a lot of physical evidence related to the carjacking. There may be his blood in the car. So it's very likely that there are evidentiary resources that have nothing to do with his interrogation. And I think that's the reason the administration is very willing, and properly so, to run certain risks about making sure we get all the information that would provide a basis for preventing additional harm to the public here.

MARTIN: But when talking about how this actually works, when you invoke this public safety exception, are there limits on the kinds of questions that authorities can ask? Do they have to be specific to a larger public threat? And who decides when that line of questioning has shifted and they should lift that exception?

ASHCROFT: Well, you know, we don't have a long line of cases that provide precedential value here, but if there are a couple of things at the top of our list, the first of our list being preventing additional crimes; the second of our list bringing justice to this individual - I think both of those objectives are clearly available in the setting we now find ourselves in.

As a matter of fact, there are three different kinds of adjudications that might be available against this individual, all of which might be undertaken successfully without administering a Miranda Warning at all. First of all, there are state crimes that he's done. There are federal crimes - the federal crime of carjacking.

Then the third type of prosecution would be if it is - and this has the, according to the public information we know least about whether this is supportable. And that is whether or not he is a part of combat against the United States and designate-able as an enemy combatant. And if he were, then he would be susceptible to prosecution for a violation of the law of war. And laws of war prosecutions are adjudicated by military commission.

MARTIN: You mentioned the possibility of trying this suspect of Dzhokhar Tsarnaev as an enemy combatant. Can you explain the legal grounding for that possibility? He is a U.S. citizen.

ASHCROFT: Well, if you're an enemy combatant of the United States in a war against the United States you are susceptible to the same kinds of adjudication as a war criminal, as any other enemy combatant would be.

MARTIN: It's my understanding, however, that in order to be defined as an enemy combatant there has to be evidence that links such a suspect to an al Qaida network or affiliated group.

ASHCROFT: You know, I think that's part of what we don't know yet and - at least I don't know - and there may be individuals who do know and have information in that respect. Whether there was linkage, either through some of the travel and training and the like, and I would not think it necessary that he specifically have received training from certain individuals overseas, but I think it would be significant evidence if his brother had been trained by individuals associated with and involved with the war on terror, and then he came and was enlisted by his brother. I think that would be a nexus that would be very powerful in suggesting that he would be eligible for adjudication. Now, in a military commission, the unique circumstances that is involved in a law of war violations is that while the death penalty is not required, virtually any violation of the law of war is the basis for, and can be the basis for, the death penalty.

MARTIN: I'd like to take a step back, if we could, because you are the person who helped craft much of the legal framework that we're now seeing implemented. As attorney general in the aftermath of 9/11 you helped build this structure for trying terror suspects. Do you think it is working?

ASHCROFT: We've had a number of situations in which it has worked very effectively. If you'll think about the Moussaoui case, which resulted in a significant conviction and sentence, the Shoe Bomber case, the Times Square Bomber case, the so-called Underwear Bomber case; and there were other plots which were thwarted or disrupted far earlier that didn't result in the apprehension of people in the actual attempt of a plot.

So I rejoice in every success we have. There are times that we did not succeed and as a nation we did not succeed in preventing this attack. But the idea that we can't prevent all attacks doesn't mean we should abandon our effort to protect any. These are very, very significant and difficult circumstances and we owe it to ourselves as a culture to do what we can to make sure that we minimize the risk.

Can we eliminate the risk? I don't think free societies can eliminate the risk. We all have to learn to do what we can to default, displace, disrupt terrorist activities - we should be learning whenever we can.

MARTIN: John Ashcroft. He served as U.S. attorney general from 2001 to 2005. He now heads a consulting group. Mr. Ashcroft, thanks so much for joining us.

ASHCROFT: My pleasure. Transcript provided by NPR, Copyright NPR.

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