FEDERAL RULE OF CRIMINAL PROCEDURE 5 and notes from an FNC colleague about the interrogation of one of the accused bombers

NOTE: you may not like that the interrogation was cut off but the Rules are plain (Rule 5 of the Federal Criminal Rules of Procedure.)  Like you, I wanted as much information as possible but the law has a specific procedure.

Here is the LAW:

After being charged (he was by US Attorney in a criminal complaint), Rule 5 says the accused MUST (not maybe) without unnecessary delay be brought before a magistrate.  He was presented to the magistrate (the magistrate went to the hospital room because they could not transport him.)  He was in custody (he was not free to leave) and had been charged.

Rule 5 also requires that the accused MUST be told of his right to an attorney and right to silence.  He was told that and that disturbs many —  but that is the law.

I know that it is upsetting that we did not get more information from the accused, but following the rules is important.  If you don’t follow the rules, you risk having evidence or even a prosecution thrown out (which would be worse.) 

Note also that Steve Hayes of the Weekly Standard reported that prior to his rights and the cutting off of the interrogation, the FBI had interrogated the accused for 16 hours.  (It was on and off for 16 hours depending on the accused’s ability to community.)

Senator Lindsey Graham says the accused could have been named an enemy combatant by the President in which case they could hold him for 30 days without Miranda rights – but he was not named an enemy combatant.  Hence the routine Federal Rules of Procedure kicked in and the Rules were followed. 

Here is the info from my FNC colleague at Justice:


A federal law enforcement official (taking big issue with comments being made by lawmakers and others) says:

“The court sets the time and date for initial appearances. That is under Federal Rules of Criminal Procedure. Rule 5.”

“The Attorney General and the Justice Department did not instruct the judge on when to hold the hearing or where. This is the purview of the courts, and the court made this decision. [DOJ officials] were informed of this Sunday night after the charges were filed. And then they scheduled the initial appearance. And obviously after the court scheduled the initial appearance, they need to notify the prosecutors, the defense attorneys, and the court reporter. … The [FBI] agents and prosecutors were notified beforehand.”


In fact, the official says, the FBI agents had actually already left the room when the judge came in.


“The only people who are not aware that an initial appearance follows charges appear to be certain members of Congress.”


When I asked the official why the FBI/prosecutors filed charges at the time they did (as in, if you know an initial appearance is going to take place once charges are filed, why not hold off?) the official said they had no real option under the law, saying “You can’t hold people without charges.”