Dzhokhar Tsarnaev is undoubtedly a murderer. Barring an extremely improbable and convoluted revelation, he and his now-deceased brother Tamerlan are clearly responsible for the bombing in Boston which left three dead and scores wounded, as well as the subsequent murder of an MIT police officer. The case against Dzhokhar Tsarnaev appears to be solid, and the punishment he will receive is likely to be severe, and justly so.
It curious, and troubling, then to see the legal contortions which have begun to surround this case. The Justice Department's decided to invoke the so-called "public safety exception" and forego reading Mr. Tsarnaev - a US citizen- his Miranda rights or permitting an attorney to be present at his initial questioning until three days after his detention has garnered considerable media attention. Some people, such as Adam Goodman, writing in The Atlantic, argue that the formal reading of the Miranda rights is not necessary, and he is probably correct. But while this might justify some hasty questioning in the moments after arrest, it does not explain the intentional delay of this practice by several days. Moreover, the claim that Miranda refers specifically to the admissibility of statements in court, and not to statements per se, defies common sense: information gained without one's attorney present may subsequently be used to shape questions even when he or she is. I am no lawyer, but it would not surprise me for a judge to throw out not only statements given before the reading of rights, but some portion of those given afterward as well.
Moreover, the public safety exception exists to, well, protect public safety. If police believe a live bomb has been planted somewhere, threatening lives, they may question a suspect on the spot. In the first hours after Mr. Tsarnaev's detention this may have been a concern, but the practicality of this argument rapidly fades with time. If after, say, 24 hours no bombs have exploded and none have been found, is there really a plausible concern about a pressing threat to public safety.
Today Mr. Tsarnaev was charged with the use of a weapon of mass destruction. This is absurd. The bombs he and his brother employed were simple in construction and did not involve nuclear, chemical, or biological weapons. They were deadly, with all the attendant pain and sorrow that term rightly implies. They were not, however, on a "massive" scale. Pretending they were is an insult to intelligence and to those who have truly suffered from such devices.
Then there are the likes of Sen. Lindsey Graham, who claimed that Mr. Tsarnaev should be tried as an enemy combatant in a military tribunal. The trial by jury has been the legal method of choice since the Fourth Lateran Council (AD 1215). While Mr. Tsarnaev is of foreign birth, he is now a US citizen, and no evidence has come forward that he acted at the behest of a foreign power or entity. Moreover, military tribunals are used for those who commit war crimes; while attacking innocent non-combatants qualifies as such, the very convening of such a tribunal would legitimize the notion that a state of war existed between the US and whatever entity the Tsarnaevs purport to represent, a claim they might care to make, but I do not. The administration was wise to overlook this line of approach.
Why have the Justice Department, Sen. Graham, and so many others, been at pains to warp this case? The obvious answer is desire for an admixture of justice and vengeance. The first is justifiable, the later understandable. But let us consider, briefly, the alternative. What if Mr. Tsarnaev were read his rights, with an attorney present, and charged with four counts of murder and at least 178 counts of attempted murder? Is there any doubt that the evidence, presented in due process in a court of law, would not secure a conviction on enough of those charges to lock Mr. Tsarnaev away for the rest of his life several times over? Why degrade the legal tradition of which we are so rightly proud with bizarre definitions and exceptions?
Perhaps Mr. Tsarnaev's fate is the rub; perhaps leaders from Sen. Graham to President Obama would like to see him executed, even at the cost of judicial procedure. The Catholic Church teaches that the state justly holds the power to kill; the death of the elder Tsarnaev brother, though unfortunate, was within the legitimate functioning of the state for the preservation of society. But, so far as I can see, there is no pressing concern that Dzhokhar Tsarnaev will escape from confinement and strike again. Bloodless means should be sufficient to restrain him, and I hope he remains so restrained until the day his Maker calls him.
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