Terrorism Trials & Investigations

Count Me Confused

By Benjamin Wittes
Saturday, April 27, 2013, 4:00 PM

The Hill reports:

The head of the House Intelligence panel is worried the Justice Department may have jeopardized the public’s safety by allowing a federal judge to read the Boston bombing suspect his Miranda rights before fully interrogating him.

Intelligence Committee Chairman Rep. Mike Rogers (R-Mich.) is demanding answers from Attorney General Eric Holder on why the DOJ allowed a magistrate judge to inform Dzhokhar Tsarnaev of his Miranda rights while the FBI was in the midst of interrogating him earlier this week.

“We can’t have, in a case like this, the judiciary deciding, because it’s on TV and it might look bad for them … that they were going to somehow intercede in this,” Rogers, a former FBI agent, said in an interview with MSNBC.

“It’s confusing, it is horrible, [a] God-awful policy, and dangerous to the greater community,” he said. “And we have got to get to the bottom of this, and we’ve got to fix it right now.”

I'm off in England, and maybe I'm missing something, but hang on a second. Since when is it up to the Justice Department whether to allow a coordinate branch of government to advise a charged criminal suspect of his rights? Since when is it up to Congress to decide whether it "can[] have . . . the judiciary deciding" whether a suspect gets presented before a magistrate?

Look, I have long argued for reform of presentment rules in high-stakes terrorism cases to permit a delay. Last I checked, neither Congress nor the administration had taken me up on that. Until they do, nobody should complain when the Justice Department allows a magistrate to conduct a presentment hearing in a hospital.