[UPDATE: According to the transcript of the questioning of Dzhokhar Tsarnaev on April 22 by the authorities (see page 4), he actually was read his Miranda rights. So it looks like there was a change in policy on this and that is a good thing.]
What is it about acts like the Boston bombing that make people become so unhinged and overthrow all due processes? Already we have calls for Dzhokhar Tsarnaev to be tortured, denied Miranda rights, and treated as an enemy combatant.
Stephen R. Walt says that this does not speak well about the nation’s psyche.
Although politicians from Barack Obama to Deval Patrick offered up the usual defiant statements about America’s toughness and resilience in the face of terror, the overall reaction to the attacks was anything but. Public officials shut down the entire city of Boston and several surrounding suburbs for most of the day, at an estimated cost of roughly $300 million. What did this accomplish? It showed that a 19 year-old amateur could paralyze an entire American metropolis. As numerous commentators have already pointed out, a city-wide lockdown is not what public officials have done in countless other manhunts, such as the search for rogue cop Christopher Dorner in Los Angeles. And Dorner was a former Navy reservist who had killed four people and who was at least as “armed and dangerous” as the Tsarnaevs.
I cannot help but think that our political leaders have been letting us down ever since 9/11. Instead of teaching Americans that that actual risk from terrorism was minimal, they have kept us disrobing in security lines, obsessing over every bizarre jihadi utterance, and constantly fretting about the Next Big One. An entire industry of “terrorism experts” has arisen to keep us on the edge of our seats, even though many other dangers pose a far greater risk.
The White House has said that they will not declare Tsarnaev to be an enemy combatant, perhaps to avoid a repetition of the last ill-fated attempt to do so with Jose Padilla, but the US Attorney leading the case has said that she will not read Tsarnaev his Miranda rights.
People may recall the hysteria over Jose Padilla. That American citizen was arrested on May 8, 2002 at O’Hare airport, accompanied by screaming headlines that he was planning to detonate a radioactive bomb. That was used to declare the so-called ‘dirty bomber’ to be an enemy combatant, denied a trial in civilian courts, and tortured to the point of mental damage. When a habeas corpus suit was filed, the Second Circuit Court of Appeals in August 2003 ruled that “Padilla’s detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat”.
The government appealed to the US Supreme Court which overruled the Appeals Court verdict on a technicality that it had been filed in the wrong jurisdiction and that Donald Rumsfeld should not be the defendant. After Padilla re-filed but before his appeal went to the US Supreme Court again, his case was transferred to civilian courts. In that trial, the ‘dirty bomb’ charge was quietly dropped, having served its purpose of scaring people out of their wits, and he was charged with “supporting Islamic terrorism overseas, conspiracy to murder, kidnap, and maim people in a foreign country; conspiracy to provide material support for terrorists; and providing material support for terrorists”. Conspiracy charges are notoriously vague and the judge’s handling of the trial was controversial. Padilla was convicted and now serves a 30-year prison sentence.
Some will try and use the latest bombing to argue that the whole world is a battlefield with the US also part of the combat zone and hence the president has the right to declare even American citizens caught within the US to be enemy combatants and deny them all due process rights. The Obama administration should be given credit for resisting those calls, though criticized for denying Miranda.
The only hope is that the courts will strongly strike down attempts to circumvent Miranda but I am not sanguine that it will happen. The ‘home of the brave’ turns out to be one that is easily scared by two young men with home made explosives.