Attorneys in the Boston bombing case are jockeying with the judge over whether or not testimony garnered from Dzhokhar Tsarnaev during thirty-six hours of FBI questioning while he lay in a hospital bed recovering from a gunshot wound—his jaw wired shut and heavily doped up on pain medication—will be admissible as evidence against him in his upcoming trial. The FBI unrelentingly questioned the younger Tsarnaev without reading his Miranda rights to him even though he repeatedly answered in writing that he wanted an attorney present during their interrogations.
Tsarnaev’s lawyers (via the Boston Globe) state that Tsarnaev ““wrote the word lawyer 10 times, sometimes circling it” and that “At one point, he wrote: ‘I am tired. Leave me alone.’ . . . His pen or pencil then trails off the page, suggesting that he either fell asleep, lost motor control, or passed out.”” In the Tsarnaev investigations the FBI justify their unremitting questioning without granting Tsarnaev his right to a lawyer being present on the grounds of protecting “public safety”. While it may have been protective to find out if there were other bombs before bothering with an attorney, the judge is pondering if what Tsarnaev told investigators under duress may be used as evidence against him—a completely other matter. While no one should feel sympathy for a terrorist who attacked our citizenry—we should all be concerned if this same law enforcement tactic can be applied to any U.S. citizen—ourselves included and then the evidence that is obtained under duress without an attorney present can then be used to convict us.
The same grounds of “public safety” were used and accepted by a judge in another case that I was involved in a few years ago where the defendant, Annette Morales Rodriguez, was also clearly guilty of a heinous crime. Rodriguez who had gruesomely cut a fetal child out of another woman leaving her for dead, while she attempted to pass the baby off as her own stillborn child, was questioned under rather unusual duress. While I found her crime horrifying, I also found it extremely disturbing that Rodriguez was picked up and escorted by Milwaukee police to a local hospital and subjected to two gynecological exams, the latter that she clearly, and unequivocally, refused but was subjected to anyway. At the same time—while Rodriguez, a former rape and incest survivor and very mentally ill person, was begging not to be subjected to another gynecological exam, a Milwaukee police official questioned her about her crime. Not surprisingly, Rodriguez, broke under the pressure of having to undergo yet another forced vaginal exam and admitted her crime. While arguments can also be made in her case for aggressively questioning her and not delaying to wait for her attorney, the judge didn’t seem to have any problem with allowing Rodriguez’s confession obtained under this level of duress to be admitted into the court as evidence. I found that so disturbing I wrote a book about it telling her story (Fetal Abduction: A True Story of Multiple Personalities and Murder).
When I hear these cases I begin to wonder about the potential abuses of government power when security services and law enforcement personnel can question us under medical duress—including medication and invasive bodily searches—without a warrant, while we attempt to refuse, and without reading our rights to us or supplying a lawyer if we ask for one. And I find it doubly horrifying that what is gained under this level of forced interrogation methods alongside what some might call “soft torture” –can be used against us in trial—and this all in the supposed service of “public safety”!
It seems to me if this sort of thing is allowed, it is not only our bodies and minds under potential assault by security professionals trying to do their jobs—perhaps at our grave expense if we are innocent—which is why in the United States constitution we have the Fourth Amendment to protect us. In the above examples, innocence is clearly not the case—but the same reasoning and behaviors could have been applied to a wrongly accused and innocent suspect—resulting in questioning under medical duress and even an invasive internal bodily search all without a warrant!
Add to that, it is not only ourselves that can today be interrogated in such a manner, but it appears that our cell phones and electronics can also be searched without warrants. The U.S. Supreme Court will soon hear two such cases that involve the warrantless searches of cell phones made pursuant to arrest. In the case of Riley v. California, David Riley was arrested for an expired registration at which time loaded guns were found in his car. A warrantless search of his cell phone then led to a further arrest and conviction for attempted murder. The California appeals court claimed that neither search required a warrant and likened the search of a cell phone to the evidence found in wallets and personal papers that have long been subject to examination pursuant to an arrest.
The second case, United States v. Wurie involves the warrantless search of Wurie’s cell phone following an arrest for drug dealing. In his case, the federal court in Boston threw out the evidence found during the warrantless search and Judge Norman H. Stahl wrote in his opinion that, “Today, many Americans store their most personal ‘papers’ and ‘effects’ in electronic format on a cellphone, carried on the person.”
Indeed when current law supposedly protect us from our doors being broken into and our homes being invasively searched without a warrant it seems contradictory that our electronic items are now potentially open to unchecked law enforcement access—akin to breaking down the doors to some of our most privately held information.
Is computer search and seizure the new frontier? That’s what Professor Orin Kerr of George Washington University School of Law and an expert in search and seizure is claiming. When viewed alongside the cases arguing “public safety” as a rationale for questioning individuals while under duress—without reading them rights or granting them access to their attorney, and judges (at least in the case I served on) accepting police evidence obtained under such severe duress as evidence to convict—it seems we are rapidly losing our rights.
If Rodriguez could convict herself through a confession obtained during a refused but, carried out nonetheless, invasive bodily search—all in the name of “public safety”—I wonder have we not effectively surrendered our rights in the hopes of being kept “safe”? And are we not just the opposite of “safe” when our own law enforcement teams can invade our computers, cell phones and even our bodies to obtain evidence that will then appear in court and used against us? For me, this is a harbinger of a police state.
Anne Speckhard, Ph.D. is Adjunct Associate Professor of Psychiatry at Georgetown University in the Medical School, forensic expert, researcher, public speaker and author of Talking to Terrorists. She conducted psychological autopsies of over half of the one hundred and twelve Chechen suicide terrorists, interviewed hostages from Beslan and Nord Ost and has interviewed over four hundred terrorists, their family members and supporters in various parts of the world.