Should Dzhokhar Tsarnaev Receive Full Constitutional Rights?

There’s been a debate since Tsarnaev’s capture as to whether he should be offered a Miranda Warning and whether he should be declared an “enemy combatant”. Essentially, should be be given the full due process and protections offered under the law and the Constitution? Two of the biggest cheerleaders for designating him an enemy combatant have been Lindsay Graham and John McCain. I’ve also witnessed, both on the Internet and TV news, people from both sides of the political aisle say yes and no. Let’s consider a few important facts

  1. Dzhokhar was in this country legally, and supposedly a naturalized US citizen
  2. The bombing occurred on domestic soil
  3. Dzhokhar was captured on American domestic soil
  4. He was captured by civilian law enforcement

As much as we’d like to trot him off to a detention center and ring him dry, he deserves the full range of protections offered by the Constitution and The Law. The Constitution is not supposed to be something that is adhered to “at will”. This is a Nation Of Law, not a Nation of Men. It’s a slippery slope when we simply take a US citizen (or even those here legally) and ignore their Constitutional Rights for expediency. If an American citizen is overseas and has joined a group against the US, that’s one thing. The four points I listed above are another.

Besides, I want him testifying in civilian court, where all of America will get to hear exactly what radical Islam is about. People have forgotten in the years since 9/11 just how dangerous, insidious, and evil the threat is.

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13 Responses to “Should Dzhokhar Tsarnaev Receive Full Constitutional Rights?”

  1. Your position may play well in gentile gatherings of ideologically pure libertarians … but as a practical matter it perilously constricts our ability to collect intelligence from enemy combatants in Global Jihad’s War on Western Civilization.

    From a legal standpoint, this case is in fact no different than the case of Anwar al-Awlaki. We need something we don’t have – and both the Bush and Obama administrations have failed to establish for us. That would be an orderly process for determining a citizen is an enemy combatant … before they are read Miranda rights *or* smoked by a drone.

  2. Gumball_Brains says:

    Your comment Liberty is what Teach mentioned. There are differences. Awlaki was overseas and was made a major soldier of the enemy we are fighting. Arguments could be made over the legality of killing his 16yo son.

    The BSA (thanks GC) was a legal citizen on American soil. That means he is protected by the Constitution no matter what anyone says or wishes.

    Teach, am not sure your wishes can be attained. The defense will not want to allow the cult of Islam to be painted in any bad light. The state will not want to place light upon Islam as a reason. And, with this BSA’s actions, they don’t need to show\prove a motive.

  3. Yeah, I know. I almost want KSM to be allowed a civilian trial so he can do the same. But, his lawyers would probably reign him in.

  4. gitarcarver says:

    Gumball: It is “BAS” because “BSA” would read “bomber suspect asswipe” and I don’t suspect he is an asswipe, I know he is. 🙂

  5. Gumball_Brains says:

    And… BSA already has a meaning too. One that is under attack as well.

  6. gitarcarver says:

    I can see a procedure where the rule of law can be followed for both men.

    In the case of Anwar al-Awlaki, you try him for treason in abstentia as allowed by the Constitution. If convicted, he can have a death sentence placed on his head. It is in that trial that there is the “due process” afforded all Americans and those here legally.

    If found guilty and sentenced to death, I have no problem taking him out with a drone on foreign soil.

    What bothered me about the Anwar al-Awlaki case is that there was no “due process,” just the administration saying “we are going to kill this American.”

    That scenario presupposes one key element: time. If you have the time to try someone and get a death sentence, do so.

    With the BAS, the crime has been committed and he is in custody because of that crime. You don’t have to convict him in abstentia, you can do it in a court.

    In summary, I agree with Teach that the rule of law and the Constitution must be followed. Just because a person commits a heinous crime does not mean they lose their Constitution rights.

  7. Gumball_Braaaaaiiinnnneeessss says:

    I like that idea Gitarcarver. Recall, all of our traitors over our history have been given a public trial and sentencing. Even Benedict Arnold, who did serve another army, was given a trial and then a punishment. His deeds were made public and are still available for review.

    What do we know of the evidence against those Americans Obama has taken out?

    I’d like to see a lawsuit be brought Re: alawki’s son vs Obama.

    ALso, once we become sheep-minded to drone flights over our own heads, how far will the next step be to armed drones overhead? (Yep, GC, tinfoil hat going on again )

  8. Dana says:

    I agree with our host: Joker Tsarnaev ought to be tried in federal criminal courts for precisely the reasons he gave.

    Further, I see no practical justification for anything else. As nearly as we can tell at this early stage, it was his brother who was the brains of the outfit, his brother who traveled back to Russia, and his brother who took any useful knowledge to the grave with him. If there was anyone else involved with this of whom the younger Mr Tsarnaev was aware, they were also aware of the Tsarnaevs, and went to ground as soon as the Tsarnaevs were publicly identified.

    The Tsarnaevs didn’t display much thought in this. They sort-of tried to escape, but they had no escape actually planned. If they had actually wanted to escape, they could easily have done so, if they had tried to flee immediately after the bombing. They could have disguised themselves better at the crime scene — cutting their longish hair and growing beards would have done the trick — and had a car, full of fuel, and plenty of cash and supplies, parked eight blocks away. From Boston, they could have been in Canada, via Maine, in just a few hours.

    They weren’t suicide bombers, and they weren’t prepared to escape; those are the hallmarks of amateurs, not professionals, and not members of an organized terrorist cell.

  9. Dana says:

    The difference I see between the prisoners at Guantanamo and the Tsarnaevs is pretty simple: the prisoners at Guantanamo were captured overseas, fighting against American soldiers. They were not in the United States, and not subject to American law. (Personally, I don’t see how it can ever be illegal, under American law, to fight against American soldiers and interests outside of our jurisdiction; our jurisdiction does not extend beyond our sovereignty.)

    I have argued, many times, that President Bush made a mistake by not declaring the prisoners at Guantanamo to be prisoners of war. Any useful information that they had quickly became stale, and interrogation of all but a few pretty much worthless, but as POWs, we would have the unquestioned legal right to hold them until the war against Islamism was over — and that might be never. With their murky legal status, we’ve actually released some of them, and some of them have found their way right back to the battlefield to shoot at American soldiers again.

    Finally, President Bush actually set a standard, by the civilian charges against John Walker Lindh; he pleaded guilty, and is a prisoner in a civilian prison. That didn’t have to be done, since Mr Lindh was captured in Afghanistan, but it was done because he is an American citizen.

  10. gitarcarver says:

    I have argued, many times, that President Bush made a mistake by not declaring the prisoners at Guantanamo to be prisoners of war.

    I don’t think he could, Dana.

    We are a signature to the Geneva Convention (or whatever name it is going by today) and under the terms of that agreement, “prisoners of war” has a specific meaning and qualifications. For example, the prisoner has to be fighting for a particular state. What state do terrorists fight for? What uniform or insignia do they wear?

    I understand what you are saying and I would think there would be benefits to declaring them “prisoners of war,” but we are not dealing with just what the US wants. In some ways we are constrained by the international language of treaties.

  11. Dana says:

    If there might be problems decaring them to be prisoners of war, do you think those were somehow solved by creation of the “illegal combatants” out of whole cloth?

    Whether someone would claim we couldn’t call them prisoners of war under Geneva is pretty much meaningless because there is no one who could force us to release them, any more than anyone can force us to release the “illegal combatants.”

  12. Gummy_Brainzes says:

    I’m not arguing one way or another here, but I do find it rather ironic that we treat these prisoners better than we treat our own prisoners, which get treated better than our free citizens.

    I can’t afford cable, to visit a gym, have time to go to library, have my meals prepared for me, get 3 square meals a day, have free health care. granted, I don’t have to share my bedroom with Jeb or Leroy, or both, and I am fairly free from “shanking”….. but why am I paying for those services for prisoners when I can’t afford it for myself? Let alone for “enemy combatants”.

    AND FOR GOD’S SAKE!!!!!!
    If they want to go on a hunger strike, BY GOD LET THEM!!!!

  13. gitarcarver says:

    If there might be problems decaring them to be prisoners of war, do you think those were somehow solved by creation of the “illegal combatants” out of whole cloth?

    Solved totally? No. But you can’t call a group of people under treaty or law something that they are not.

    Whether someone would claim we couldn’t call them prisoners of war under Geneva is pretty much meaningless because there is no one who could force us to release them, any more than anyone can force us to release the “illegal combatants.”

    Actually, once the war is over, you have to release POW’s under the Geneva Convention.

    Your example simply highlights the problem, not solves it. We are not dealing with “prisoners of war” under the terms of any treaty or legal meaning. Therefore creating a new category for terrorists who have no allegiance to a country, have no uniforms or insignia, and who are not responsibly to any state was the only solution. The term “enemy combatants” is now used globally and will be addressed by the Conventions.

    Clearly this is developing law, but the term “prisoners of war” was settled law. I believe we had to go in the direction we went.

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