TODAY   |  April 20, 2013

Expert: FBI has strong case against bombers

Even if suspect Dzhokhar Tsarnaev does not speak to investigators before being read his Miranda rights, the FBI still has a strong case. TODAY’s Matt Lauer interviews NBC news national security analyst Michael Leiter.

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>> it's a big victory for everyone involved but the work has just begun. now authorities need to figure out if these bombings suspects had any help. michael is an nbc counterterrorism analyst and served as director of national counterterrorism center under presidents bush and obama. michael , good to see you.

>> good morning, matt.

>> he's under federal custody right now. he's not been mirandized. hasn't been read the lights we see in tv and in the movies and a normal part of criminal proceedings . what leeway does that give the federal government and what does it not allow them to do?

>> the federal government has a fair bit of latitude at the beginning to ask him questions that relate to directly to the public safety about other bombs, about other plotters. now, this is all judicial doctrine so there's no clear standards on how long that would last but that period should go into today and maybe even tomorrow. at some point he's going to have to be presented to a u.s. magistrate and hear the charges and from there he'll get back into the system. the hope would be that he'll talk even if he is mirandized by the fbi.

>> so this public safety exception, are there other bombs out there, other accomplices, is it going to take a smart defense lawyer to say, wait a second, i challenge this because let me read you tweet from the boston police after he was taken into custody. it says captured. the hunt is over. the search is done. the terror is over. is that a problem?

>> that would be used by a defense attorney to argue there was no public safety threat. in light of the circumstances we've had, the numerous improvised explosives, the huge gunfire, i think that the government is going to get a fair bit of latitude here. the other piece we have to remember is miranda only affects the statements he makes and whether or not they're admissible in court. i think the fbi will likely have a very, very strong case even if he says nothing at all based purely on the surveillance tape, statements of witnesses and the forensic evidence.

>> michael , we'll have you on later to talk about the radicalization of these brothers, how and when it may have happened. thank you very much.

>> thank you, matt.

>> savannah, you're a lawyer. the government on firm legal ground here?

>> it is. as michael pointed out this is a limited exception to the miranda rule . there's no bright line. the court has never said that public safety emergency only lasts for x amount of time. it would be something a later court would look at and say did officers have a reasonable and objective belief that there existed a public safety emergency that would allow them to continue questioning an american citizen without reading him his miranda rights .

>> in this time he has no access to a lawyer, correct?

>> that is correct. another open question . what if somebody invokes the right to a lawyer before being read the miranda rights ? okay. the public safety exception would still exist. the reason this matters is once someone is read his miranda rights at any point if he says i want a lawyer, the court has said the questioning must stop. you can't approach them. you cannot in any way that could be interpreted as interrogation talk to that suspect.

>> the question is a 19-year-old suspect who is in medical disarray going to think to say i want a lawyer. let me just ask you one other question. there's some who wondered whether this is actually federal jurisdiction and whether this might not be a state of massachusetts situation, a simple murder case.

>> you're impressing me as a potential defense lawyer . you brought up a couple points that any defense lawyer would. isn't this strictly a massachusetts state matter? this is significant here. massachusetts does not have the death penalty . the federal courts do have the death penalty . i think there will be a strong case for federal jurisdiction . it won't take that much of a hook for prosecutors to say this is a terrorism case. it belongs in the federal courts . let me just say as a veteran of the wars of washington this issue of whether he's called somebody who is a suspect in the criminal justice system as opposed to somebody who is treated as an enemy combatant and by the way an american citizen may be treated as an enemy combatant will be a political hot potato . i don't think there's any question how the obama administration will come down on it.

>> we move on.

>> yes, we do.