Following the US government’s decision to question the living Boston bomber
suspect, Dzhokhar Tsarnaev, for 16 hours before reading him his Miranda rights,
the never-ending debate about balancing a terror suspect’s rights with public
safety is back in the headlines.
The debate is at least as fluid in
Israel as in America, and the US’s conclusions have and are likely to continue
to have a significant impact on how Israeli judges and lawyers end up striking a
Miranda rights or warnings, as made famous in movies, involve
the obligation of a policeman to tell a criminal suspect who he has just been
arrested that they have the right to remain silent, the right to an attorney and
other rights, before asking them any questions about the crime.
solidified some preexisting common law defenses against self-incrimination and
was imported, to differing extents, from the US to Israel and many other
Instances where police failed to issue Miranda-type warnings
to a suspect have been the basis of countless instances where Israeli courts
have thrown out otherwise solid cases.
But what happens in the US when it
comes to balancing suspects’ rights with strong anti-terror and public safety
policies has impacted Israel in a much stronger way.
Former Supreme Court
president Aharon Barak started the prevalent trend of reviewing numerous foreign
legal practices, especially those of the US, when deciding important cases
implicating constitutional rights.
While his successors may not be as
enamored as Barak with American legal trends, the Supreme Court continues the
review, and at least sometimes, exhibits significant deference to such
The court is not the only place this occurs.
In the IDF,
the Foreign Ministry and the Turkel Commission’s position papers and reports,
which responded to and evaluated allegations of violations of the laws of armed
conflict and detainee rights during Operation Cast Lead and the 2010 flotilla,
the US position was always reviewed in detail.
Mostly, the US position
has had the impact of moderating the Israeli position and pulling it more in the
direction of suspects’ rights, at the expense of giving public safety complete
But there have been instances in the opposite direction. For
years, Israel was criticized for “targeted assassinations” and torture, and of
not granting full Miranda and other rights to detainees suspected of
But not long after September 11, 2001, when the US started to
regularly carry out targeted assassinations, the Israeli Supreme Court endorsed
the legality, in defined circumstances, of targeted assassinations. Criticism
against Israel for its handling of detainee rights, at least from the US and
some other Western countries, became muted.
Israel also legislated
several new laws to empower the Shin Bet (Israel Security Agency) and other law
enforcement agencies to interrogate and detain terror suspects for much longer
amounts of time than normally allowed, and not bring them before a judge or
grant them access to a lawyer for longer than usual.
One such 2006
emergency law, which must be periodically extended, was just extended again on
Monday for another two years.
But what was the exact debate in regard to
the questioning of the Boston bomber for 16 hours without Miranda warnings, and
where more specifically could that impact the debate in Israel? Miranda itself
dates back to around 50 years ago, as part of a defense of the US 5th Amendment
right against self-incrimination.
In the early 1980s, a “public safety”
exception was created that allowed law enforcement to question suspects prior to
giving them Miranda warnings, if they believed that the immediate questioning
was necessary to address an ongoing danger to public safety.
safety exception has developed and been defined further since then. In 2000, a
terror suspect named Abu Mezer, who like the Boston bomber, was questioned
without Miranda warnings while lying injured on his hospital bed, challenged a
specific question from police as being more about delving into the past than
trying to prevent a future attack. The line of questioning mostly related to
potentially disarming bombs that the police believed were still in play, but the
suspect objected to police having questioned him about whether he had planned to
blow himself up – to which he had answered “poof.” The suspect said that his
“poof” answer was about a possible past threat only, not anything in the future,
in which case it could not fit the “public safety” exception and violated his
The US Second Circuit Court of Appeals disagreed, holding
that his whispering “poof” on his hospital bed could be used against him to show
he was planning on carrying out a suicide bombing. The circuit court noted that
“Abu Mezer’s vision as to whether or not he would survive his attempt to
detonate the bomb had the potential for shedding light on the bomb’s
There have been widespread objections to questioning the
Boston bomber based on the idea that by the time he was caught and questioned on
his hospital bed, it had been clear for days there was no ongoing
In battling these objections later in court, the US government
may try to rely on the Abu Mezer case to argue that its questioning of the
bomber had some potential to “shed light” on potential future threats.
fact, the bomber not only admitted to his involvement in the bombing, but also
reportedly told investigators that he and his brother, Tamerlan, had planned a
future attack on New York.
Incidentally, as soon as he was given his
Miranda warning after the 16 hours, the bomber completely ceased talking to
Still, the bomber’s defense team will likely try to
convince the court that this threat was not imminent when the bomber was heavily
injured and could barely talk.
They will also likely attack the idea that
the statements were given voluntarily, a requirement even for the safety
exception to apply, since the bomber was questioned while ailing on his hospital
bed, mostly writing answers since he could not speak.
The US government
will need to argue that as in Abu Mezer’s case, who was also questioned in the
hospital, the key issue was not whether the bomber was in pain, but that he “was
alert, seemed to understand the questions and gave responsive
Proponents of questioning the bomber without Miranda warnings,
some wanting even to declare him an illegal combatant to whisk him off to a
secret prison, said that it is exceedingly rare that domestic terrorists are
captured, and that questioning him without Miranda warnings could also have been
a unique intelligence opportunity to understand his network and
Some of these proponents are now even blasting the
government from the other side – criticizing that Miranda warnings were given
after “only” 16 hours of questioning.
Although the US government did not
go as far as these detractors wanted, it has emerged that since 2010, including
in this incident, there has been standing executive permission in questioning
suspects for intelligence-gathering in terror cases, which in some circumstances
allows law enforcement to go beyond the traditional interpretation of the public
One specific Israeli area that could be heavily
impacted by the US’s initial questioning without a Miranda warning, and the
court’s decision if the answers to the questioning are upheld, is the
application of a well-known Israeli Miranda-type case known as Yisascharov,
dating to 1996.
The main point of Yisascharov was that courts would throw
out evidence in a situation where a suspect was questioned without being
informed of all his rights, specifically in that case his right to consult a
However, now there are many exceptions to Yisascharov, which
allow weighing the failure to inform a suspect of his rights as just one of many
key factors in deciding whether a court will accept a piece of evidence – and
not as something that automatically requires throwing out the
The debate in Israel about how to apply Yisascharov and its
exceptions is still hot, and one judge, Asher D. Grunis, who was in the minority
against the entire Yisascharov ruling, voting there to allow the evidence, is
now Supreme Court president.
While the emergency law reducing the rights
of terror suspects to access to the courts and to lawyers was extended this
week, the vote was a narrow 5-4, with many MKs unimpressed even by the pleadings
of the head of the Shin Bet’s investigations unit that these powers were needed
to save lives.
In this environment, the US initial decision and any
supporting decision to follow by US courts is likely to empower those demanding
stronger powers for law enforcement, and to disempower those fighting on behalf
of suspects’ rights.