The White House made it official Monday: Dzhokhar Tsarnaev won't be treated as an enemy combatant. Despite the push from several senators to try him as such, the Obama administration will not try the 19-year-old Boston Marathon bombing suspect as an enemy combatant because he is a U.S. citizen.
There has been much debate over how Tsarnaev was in custody and communicating with investigators, mostly through writing, for two days – yet Miranda rights were not read during that time.
Should his rights have been read when he was taken into custody on Friday? Not necessarily, says University of Miami Law Professor Tamara Lave.
"Actually, you only need to read someone their rights when they're in custody – which he was – and being interrogated, which he was not. So it’s only at that moment that the rights need to be read,” Lave said.
Tsarnaev, who is in serious but stable condition at a Boston hospital, began responding to questions from investigators Sunday, federal officials told NBC News.
The Department of Justice waived reading Tsarnaev his rights, saying he posed a public threat, more bombs could have been out there, and he could have been part of a terror network.
Instead, the government invoked the public safety exception and continued to talk with Tsarnaev. Still, at this point, he wasn't read his rights. Lave said that potentially what Tsarnaev told investigators may not be used against him, and could be thrown out of the trial.
"So what happens if the government gets it wrong? What happens if in fact the court, either the trial court or an appellate court finds that this was not a public safety exception?” she said. “What happens then is the statement is inadmissible against this particular defendant in court. It can't be used against him. If his statement leads to any physical evidence, like another bomb or weapon of some kind, that can be used against him.”
Tsarnaev was advised of his Miranda rights Monday, as he was charged in his hospital room with one count of using and conspiring to use a weapon of mass destruction resulting in death in the U.S. and one count of malicious destruction of property with an explosive device resulting in death.
The local American Civil Liberties Union declined to comment on the Miranda or enemy combatant issues. It referred NBC 6 to its national chapter, which released a statement.
"Every criminal defendant is entitled to be read Miranda rights. The public safety exception should be read narrowly,” the ACLU said. “It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule.”
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