Editorial: Civilian court is the right place to try bombing suspect
Among the many, many breathtaking parts of the Boston Marathon bombing saga last week was the speedy, decisive and ultimately heroic work of law enforcement officials. These were not soldiers or military officials – they were cops and detectives and officers of the FBI, dealing with nearly unprecedented chaos and ultimately restoring calm to a region gripped by panic.
These were civilian officers doing civilian work and doing it well. Which is why the call from several Republican lawmakers, including New Hampshire Sen. Kelly Ayotte, to declare Dzhokhar Tsarnaev, the surviving bombing suspect, an enemy combatant was so disheartening and ultimately insulting. Is there, after all, any evidence that the civilian criminal justice system can’t handle this case? In fact, there are centuries of precedent to the contrary.
Ayotte, along with Rep. Peter King and Sens. John McCain and Lindsey Graham, put out a joint statement over the weekend, demanding that Tsarnaev be held by the military without access to a lawyer or other basic rights of a democracy.
“It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city,” the lawmakers wrote.
“The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans. The suspect, based upon his actions, clearly is a good candidate for enemy combatant status. We do not want this suspect to remain silent,” they said.
Their thinking is flawed in several ways:
∎ Tsarnaev is an American citizen, which means he cannot be tried by a military commission, a legal system reserved for aliens.
∎ While he and his brother are Muslims, there is no evidence – so far at least – that he was working with al-Qaida or any other organized group. And while the U.S. government remains in armed conflict with al-Qaida, the country is not at war with all Muslim extremists. In other words, this isn’t war; the rules of war don’t apply. The law does not appear to allow the military to hold him.
∎ Over the weekend, civilian investigators began questioning Tsarnaev without reading him his Miranda rights and without a lawyer, using a narrow public safety exception that permits such activity to protect the police or public from immediate danger.
∎ Ayotte and the others seem to believe that the only way to acquire information from Tsarnaev is if he is denied his constitutional rights as an American citizen. And yet, look at the ocean of information already available to prosecutors in this case that ties Tsarnaev and his brother to the carnage.
President Obama has said he believes terrorism suspects arrested in the United States should be handled by the criminal justice system, and yesterday his Justice Department charged Tsarnaev with one count of “using and conspiring to use a weapon of mass destruction” against persons and property within the United States resulting in death, and one count of “malicious destruction of property by means of an explosive device resulting in death.” If he is convicted, the charges could carry the death penalty.
The suspect was arraigned in his hospital bed, and a magistrate judge advised him of his rights and the charges against him.
Obama is right. Based on what we now know, civilian prosecutors, defense attorneys and judges are capable of trying this case. And, if Tsarnaev is found guilty, the civilian criminal code is certainly capable of imposing harsh punishment.
An important message to the world – including to would-be terrorists – is that America’s democratic institutions work and work well, even in times of extraordinary strain. They are stronger than terrorism. Let the system do its job.