Trusting Our System, Civil Liberties and All

Once the alleged sole surviving Boston bomber was apprehended late last week, calls immediately began to limit his constitutional rights.  Law enforcement decided to question Dzhokhar Tsarnaev, a naturalized American citizen, without “Mirandizing” him – that is, without advising him that he had the right to remain silent, that he had a right to an attorney, and that if he could not afford one, the court would appoint one on his behalf at no cost, and that if he did speak, anything he said could be used against him at his criminal trial.

Miranda rights are bedrock American constitutional principles.  How did law enforcement avoid advising Tsarnaev of his rights?  They relied upon a relatively new, narrow “public safety” exception, which allows police to question subjects about imminent threats to public safety, such as the location of conspirators or a ticking bomb.  Since Boston police advised that the threat was over upon apprehension of this defendant, defense attorneys for Tsarnaev will have an argument that this exception was inapplicable, and that any information police learned from the questioning should be inadmissible at trial.  I would have preferred to see police Mirandize him, question him, charge him, and prosecute him.  Maybe he would have communicated (many defendants do), maybe not.  But there appears to be powerful photographic and forensic evidence against Tsarnaev, so why give his defense attorney an argument?

Some members of Congress also argued that Tsarnaev should be treated as an enemy combatant, held in a military prison like Guantanamo Bay and tried before a military court.  The phrase “enemy combatant” arose when military adversaries were captured on battlefields abroad, and has been expanded under the last dozen years of America’s “war on terror.”  Nevertheless, calling an American who commits a crime on American soil without any assistance from hostile foreign organizations like Al Qaeda would be a radical new expansion of the doctrine.  The Obama Administration has therefore correctly refused to designate Tsarnaev as an enemy combatant, and has committed to trying him in a civilian federal court.

Over four hundred terrorists have been tried and convicted in our federal courts, and if as police claim he is caught on videotape placing pressure cooker bombs, Tsarnaev will surely take his place among them.  Though the Boston bombing was sickening and horrific – Tsarnaev is accused of placing a bomb in a crowd next to an eight year old boy, killing three, injuring dozens, blowing the legs off of elite runners – our courts are more than competent of bringing him to justice.  Violent thugs, gang members, serial killers and every other kind of brutal criminal are afforded their constitutional rights daily in our system – and convicted.

Our criminal justice system has its flaws, which I have spent many years speaking out about.  Granting defendants the right to remain silent, the right to an attorney, and the right to a jury trial are not among them.  As Benjamin Franklin wrote so wisely:  “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

The opinions expressed here represent my own and not necessarily those of Avvo.com.