The siege of Watertown is over. After nearly five days of terror….Bostonian are venturing out and returning to their daily routines. The Red Sox will play their scheduled game against the Kansas City Royals and the Bruins will take the ice to play their postponed game on Saturday against the Pittsburg Penguins. However the capture of Dzhokhar Tsarnaev, the only surviving suspect in the Boston Marathon bombing after his brother was killed in a shootout, presents authorities with decisions which may have far reaching implications for what it means to be a US citizen. Should authorities classify Tsarnaev, a naturalized US citizen, as an enemy combatant?
Calls to hold Tsarnaev as an enemy combatant began even before his capture on social media. Senators Lindsey Graham and John McCain issued a joint statement calling for the administration to hold the 19-year old Chechen under the Law of War. John Bolton, former UN Ambassador, repeated the call on Fox News.
“Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks. We remain under threat from radical Islam and we hope the Obama Administration will seriously consider the enemy combatant option.” McCain and Graham wrote in their joint statement.
At the time of this writing….Tsarnaev has not yet been read his Miranda Rights. He is under guard and listed in serious condition in Beth Israel Hospital in Boston. The Obama administration said it would invoke the public safety exception to the Miranda rule and would withhold the warning normally read to suspects under arrest when the accused terrorist is physically able to be interrogated. The administration did not mention how long they would invoke the public safety exception but media has largely been stating 48 hours as these are the Justice Dept. guidelines to the FBI. The clock does not start ticking until Tsarnaev is physically able to answer questions.
It’s important to understand that the Supreme Courts ruling which established the public safety exception (New York v. Quarles) did not specify a time limit. The exception was created without specific constraints because the Supreme Court knew that it could not foresee all possible scenarios in which the exception could be applied. The FBI guidance was issued months after Attorney General Eric Holder offered to work with Congress on a law that would provide clarity to law enforcement in applying the public safety exception. Holder, who doesn’t exactly have a great reputation with Congress following the Fast & Furious scandal, failed to get any legislation passed.
Questioning a suspect without administering his Miranda Rights only means that that particular information, if any, cannot be used in a criminal prosecution. Clearly….there is enough video and material evidence to bring a conviction in this case. However…any information gleaned during this questioning can be used to track down any additional collaborators or suspects that may have provided assistance to the Tsarnaev brothers including any international terrorist organizations.
Understandably, conservatives are concerned that the Boston Bombing prosecution can take the same path as the bungled Nidal Hasan trial. Hasan, an Army Psychiatrist, opened fire on unsuspecting soldiers at Ft. Hood on November 5, 2009 killing 13 people and wounding 30. Despite proof of Hasan communicating with known terrorist Anwar-Al-Awlaki and screaming Allahu Akbar during his attack…the Obama Administration classified the event as “workplace violence” and not an act of terror. The trial continues to drag on in a Military court and survivors have been denied purple hearts and other benefits associated with combat injuries. Truly…..a national disgrace.
Try as I may…..I cannot seem to forget that the younger Tsarnaev is a citizen of this country. I’m torn between my desire to classify him as something foreign and undeserving of the protections bestowed him as a citizen and my respect for the constitution and due process. It seems to me the real enemy combatant was his dead brother, Tamerian Tsarnaerv, who posted extremist Islamic videos on You Tube and was questioned by the FBI after an undisclosed country informed them of his extremist views. But make no mistake… Dzhokhar Tsarnaev is a stone cold killer and terrorist not unlike Ted Kaczynski, Eric Rudolph or Timothy McVeigh. All of which were found guilty but with their constitutional rights intact. The question is one of gathering intelligence.
If played correctly….the Obama Administration can obtain the intelligence they need while protecting Tsarnaev’s constitutional rights. They would be wise to push the envelope of the public safety exception to it’s fullest so that all agencies have the opportunity to question the suspect and gather all needed intelligence. Of course, this will require a cooperative Tsarnaev and a willing Obama Administration. If this questioning uncovers an international terror link…Tsarnaev should be classified as an “enemy combatant”.
Regardless of what transpires with Tsarnaev….terrorist worldwide have seen firsthand how a soft target public gathering incident can transpose a major metropolitan area into a localized police state. Safety concerns for malls, theaters, parks and parades will need to be re-thought. What happened at the Boston Marathon on Monday changes everything we thought we knew about public security.
But it shouldn’t change our values or our beliefs as Americans. We must find a way to preserve our liberties and our individual rights while maintaining an acceptable level of security. But if political grandstanding results in the degeneration of our constitutional protections and the militarization of our justice system……the terrorist win.
This is John Galt Speaking!