The Rahami Interrogation: An Update

Rahami has been in custody (and in the hospital in Newark) for about two days at this point. The public record reveals very little about the interrogation process thusfar. What we do know is that federal charges are now pending both in Manhattan and in New Jersey, and that it appears that he will first face those New York charges. At some point when his medical situation permits, that is, he'll be moved to New York and the prosecution will begin to unfold. (The criminal complaints, and a statement about moving him to New York, are here). Against that backdrop, here are some of the important questions:

Has he received Miranda warnings yet?

We don't know. It seems very likely that the answer is no. Most likely, FBI is acting pursuant to the DOJ policy on the delay of Miranda warnings in the event of a captured "operational terrorist" such as Rahami. It is possible, too, that Rahami has agreed to waive his rights and is answering questions voluntarily.

What about "presentment"? Has he appeared before a judge yet?

As we approach the 48-hour mark, the requirement of prompt presentment before a judge begins to loom larger. Note that this would not require him to appear physically in court. As with the Tsarnaev case, a virtual appearance—or even a hospital visit by a judge—can serve. The important question is: at what point will this occur, however it occurs physically? Note the possibility that he has waived presentment. I've seen no indication that he has done so, but it is possible. If he has not done so, then some time in the near future it is very likely he will indeed be presented. At that point, if not earlier, expect the judge to assign the Federal Public Defender's office to represent Rahami, and expect FPD attorneys to be given access to him. Note, in this respect, that David Patton, the well-respected Executive Director of Federal Defenders of New York, has already written to Magistrate Judge Gorenstein (SDNY) to ask for a presentment to be scheduled for today.

Bottom line: For the past two days, some degree of un-Mirandized interrogation has been taking place under color of (i) the Quarles public-safety exception, (ii) a formal waiver in writing by Rahami, or (iii) a decision by FBI & DOJ that interrogation beyond Quarles and without waiver nonetheless needs to continue. But all this will likely come to an end very shortly, perhaps today, barring a waiver by Rahami.