TODAY

TODAY   |  April 22, 2013

How should bombing suspect be legally treated?

Lisa Bloom, TODAY legal analyst, discusses the legal questions facing Dzhokhar Tsarnaev, the captured Boston Marathon bombing suspect, saying authorities are giving defense attorneys an argument by not reading him his Miranda rights, citing the “public safety exception.”

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This content comes from Closed Captioning that was broadcast along with this program.

>>> this half-hour with some of the legal issues surrounding the arrest of the surviving bomb suspecter dzhokhar tsarnaev. lisa, good morning to you. we understand he's responding to the extend he can in writing. and that officials are citing what's known as the public safety exception so that they don't have to read him his miranda rights right away. as time passes , does the justification for that exception grow weaker? are they on less strong ground?

>> it sure does, because as you know, miranda rights are a bedrock constitutional principle. we all have the right to remain silent, to get an attorney and be advised of those rights. the public safety exemption is a very narrow exemption. there has to be an imminent threat to the public. it certainly seems less imminent.

>> don't officials who say the terror is over, don't they kind of undercut that argument, and does it really matter in the end?

>> this is certainly an argument that's going to be handed to this defendant's defense attorney when that time comes. there have been contradictory statements made that there is no public threat, there is no ticking bomb , thank goodness, apparently, based on what we know so far. so we're giving them an argument to use later.

>> the issue is, the questioning that's permitted without miranda is very narrow in scope, correct?

>> yes. it's about what the public threat is. it's not all of the basis and the background and the motive questions.

>> that's what brings me to this issue that's percolating in washington now. there are some national security republicans who say we should treat this suspect not as a criminal suspect but as an enemy combatant so there could be a more wide range in the interview.

>> enemy combatant arose in times of war. when we capture somebody on the battlefield. as the nature of war has evolved, we're now in a war on terror , some are saying that definition should be changed. but this is an american citizen captured on american soil, an american crime . i don't see him as an enemy combatant . i don't think the courts will either.

>> they would have to have some connection to al qaeda in order to meet that classification.

>> well, that's right. i don't see that here. do we want this to be a creative precedent, setting case, or do we want to treat him like the hundreds of other terrorists who have been successfully tried on american soil.

>> great to have you here. thank you.