Legal scholar Erwin Chemerinsky pens a forceful op-ed in The Los Angeles Times reminding folks that "the Constitution applies to us all, including the Boston bombings suspect":
The Constitution provides protections to all those accused of crime, including the privilege against self-incrimination, the right to counsel, the right to a speedy trial in front of a jury, and the right to have guilt proved beyond a reasonable doubt.Over at The New York Times, Andrew Rosenthal points out the hypocrisy of those who call for treating American citizens as enemy combatants:
There is no exception in the Constitution, or ever recognized by the Supreme Court, for especially horrible crimes or for ones that can be labeled terrorism. [...] Throughout American history, whenever there has been a serious threat, people have proposed abridging civil liberties. When that has happened, it has never been shown to have made the country safer. These mistakes should not be repeated. Dzhokhar Tsarnaev should be investigated, prosecuted and tried in accord with the U.S. Constitution.
The federal government managed to hunt down, arrest, charge, try, convict and execute Timothy McVeigh without junking due process. When Jared Lee Loughner attempted to assassinate Rep. Gabrielle Giffords, and shot dead a federal judge and a 9-year-old, grandstanding lawmakers did not demand that he be taken into military custody. Nor did they make that demand when James Holmes was arrested for killing 12 people and wounding 70 others at an Aurora, Colo., movie theater.Head below the fold for more analysis on the day's top stories.
But now Senator Lindsey Graham is calling for Dzhokhar Tsarnaev to be classified as an enemy combatant and “held and questioned under the law of war,” without a lawyer.
What’s the difference? The Boston Marathon bombings are closer to the colloquial and legal definitions of terrorism than the Aurora shooting, but not the Oklahoma bombing, or the Arizona attack.
The real difference is that Mr. Tsarnaev is a Muslim, and the United States has since the 9/11 terrorist attacks constructed a separate and profoundly unequal system of detention and punishment that essentially applies only to Muslims.
Greg Sargent at The Washington Post:
Defending the civil liberties of suspected terrorists is generally not considered a popular position. And yet, in a bit of a surprise, a new poll released today finds that a plurality worries more about government trampling constitutional rights while battling terrorism than it does about government not doing enough to fight it.Rachel Weiner brings us the reactions that show the unreasonableness of the "enemy combatant" position:
“[I]t would be not merely ill-advised but absolutely nuts to try to treat Tsarnaev as an enemy combatant,” wrote Brookings Institution national security expert Benjamin Wittes on the popular Lawfare blog, co-founded with George W. Bush administration adviser Jack Goldsmith. [...] Harvard Law Professor Alan Dershowitz told the conservative Newsmax Web site that the senators calling for the “enemy combatant” designation “should go back to school and study their constitutional law.”The Denver Post editorial board hails the administration's decision to comply with the law and provide due process in civil courts:
[I]t's not clear Tsarnaev even meets the legal requirement for enemy combatant — that he is "part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States." His older brother, Tamerlan, who was killed in a shootout last week with police, may well have fit the bill, given multiple reports of how he had become radicalized in recent years. But the younger Tsarnaev's own sympathies are less well-known.The Boston Globe's takedown:
Not that the Obama administration has been a total stickler in upholding the suspect's rights. We were disappointed to hear U.S. Attorney for Massachusetts Carmen Ortiz last week declare that they would invoke a public-safety exception to the Miranda rule, under which suspects must be advised of their right to remain silent and to have a lawyer.
But even this exception, involving a day or two of questioning without the Miranda warning, is surely justified only in the presence of an imminent threat — which simply doesn't seem to apply here. And so we find ourselves agreeing with ACLU Executive Director Anthony D. Romero, who in a statement last weekend said, "Every criminal defendant is entitled to be read Miranda rights. The public safety exception should be read narrowly. It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule."
So why do the senators — whose call was echoed by Massachusetts senatorial candidate Gabriel Gomez — persist? Some candidates seem to feel that asserting a manly contempt for defendants’ rights is a winning political stance. But it’s also hard to avoid the impression that McCain, Graham, and some other hawks are rehashing the battles of the Bush era, in search of vindication. During the recent confirmation hearings for Defense Secretary Chuck Hagel, McCain and Graham seemed most concerned about preventing a one-time Iraq war critic from heading the Pentagon, as if elevating him to the job would discredit a war that both senators vigorously supported.The Baltimore Sun has a great editorial not just on the constitutional aspect of trying the bomber but also on those who are manipulating the tragedy to try and derail immigration reform:
Just as it seemed the media deserved a nod for their collective restraint in the reporting of last week's Boston bombings, the investigation and the manhunt — a New York City tabloid and certain provinces of cable news excepted — the politicians are filling the void of irresponsibility. Is it really too much to ask for them to at least find out the truth behind the attacks before allowing the Tsarnaevs' actions to redefine life in the United States?Finally, here's a great piece from Susan Milligan at U.S. News & World Report on the claim that more guns would have made Boston safer:
The proper response to terrorism is never to panic. It is to react appropriately to the act, to deter similar behavior in the future and to bring those responsible to justice as swiftly as possible. Surely, we've learned this lesson enough by now. And Americans should be delighted with the timely actions of law enforcement in the Boston case — as well as President Obama's clear-eyed endorsement of the rule of law.
But what happens when a couple of psychopaths with a few hundred dollars in supplies from a hardware store elicit some over-the-top response from Congress or others with a voice in national affairs? Sadly, it may very well send a message that more than 11 years post-9/11, the United States is vulnerable to attack — and not just the kind plotted by sophisticated international terrorist groups but perhaps from aggrieved people who just crave attention.
And what would an individual do with an AR-15? Go door-to-door, ferreting out a man who might well have another bomb on him? That's one way to wind up dead, perhaps taking a lot of other people with you. A single individual with a gun is no match for a suicide bomber. Trained teams of bomb squad technicians and well-protected professional law enforcement officers are a better bet. This, actually, is what the framers of the constitution had in mind when they wrote a Second Amendment referring to "a well-regulated militia."
There is a suspicion of government – any kind of government – in the country that has reached disturbingly absolutist levels. This isn't just about whether the government should collect taxes for the purposes of paving roads (as opposed to having user fees fund it), or whether government has the obligation to provide for vulnerable and needy citizens. This is about a failure to recognize a basic truth: that we cannot do everything on our own, including personal defense.
Even the "citizen" investigations done on the Internet turned out to produce the wrong suspects. But when civilians turned in their cell phone photos and videos to police, the experts figured it out. It took a whole, big village of Bay Staters to find and capture the alleged killers, and that doesn't make us weak. Inter-reliance sows our strength.