The Constitution vs All those Bullets* and
the Usurpers who would use concepts like "enemy combatant" to
deprive US citizens of their rights.
In the case of accused Boston Marathon bomber Dzhokhar Tsarnaev, the paramount fact to keep in mind is that he is a USA citizen and is therefore covered under the Bill of Rights. It should also be remembered that, nowhere in the US Constitution is the term or concept "enemy combatant" to be found.
There are several ways in which the authorities could proceed against Dzhokhar in court, ranging from Massachusetts charging him with multiple counts of murder to the feds charging him with (among other possibilities) treason. However, no matter how they proceed, it would serve no useful purpose to pretend, in the absence of proof, that this defendant is something other than a citizen of the USA. Such a pretense serves only as a thinly-veiled attempt to deprive this man of his rights.
What is an enemy combatant?
For your convenience, in the next paragraph I will broach the definition of "enemy combatant." However, this is my personal feeling: There are a lot of lawyers working for the US government who have nothing better to do than muddy the waters with definitions and self-serving memos which (for instance) justify torture.
QUOTE [Note my highlighted portion]:
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war.[1][2] Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an insurrection the term "enemy state' may be replaced by the more general term "Party to the conflict" (as described in the 1949 Geneva Conventions Article 3).[3] In the United States the phrase "enemy combatant" was used after the September 11 attacks by the George W. Bush administration to include an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror. In this sense, "enemy combatant" actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions. Thus, the term "enemy combatant" has to be read in context to determine whether it means any combatant belonging to an enemy state, whether lawful or unlawful, or if it means an alleged member of al Qaeda or of the Taliban being detained as an unlawful combatant by the United States. In the United States on March 13, 2009, the Obama administration announced its abandonment of the Bush administration's use of the term "enemy combatant."[4]
As for my highlight above: Since no proof has been presented that Dzhokhar is an "enemy combatant" or an "unlawful combatant" - and no charge to that effect has been made - then he must be treated as a USA citizen fully entitled to his rights. My reasons for so concluding, as well as my other comments, will be found within the following quote within brackets:
QUOTE:
...Dzhokhar Tsarnaev, will not be tried as an enemy combatant, the White House said today, rejecting calls from some lawmakers to do so.
"He will not be treated as an enemy combatant. We will prosecute this terrorist through our civilian system of justice, " White House Press Secretary Jay Carney told reporters today. "Under U.S. law, United States citizens cannot be tried in military commissions. And it is important to remember that since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists."
[Jay Carney should have said, "We will prosecute the accused..." To call him a "terrorist" at this point is premature, even in light of recent comments he made. For a man to have committed a crime, intent has to be present. And that can't be if, as I strongly suspect, this man (as well as his brother) was under mind control and therefore not responsible for his actions when he detonated those explosives.]
[Jay Carney should have said, "We will prosecute the accused..." To call him a "terrorist" at this point is premature, even in light of recent comments he made. For a man to have committed a crime, intent has to be present. And that can't be if, as I strongly suspect, this man (as well as his brother) was under mind control and therefore not responsible for his actions when he detonated those explosives.]
Sen. Lindsey Graham, R-S.C., today blasted the decison as "premature."
[Memo to Sen. Graham: It would be premature to label the suspect as an "enemy combatant." I know how badly you want him to undergo intensive interrogation; but lacking proof that he fits the definition, that shouldn't happen.]
[Memo to Sen. Graham: It would be premature to label the suspect as an "enemy combatant." I know how badly you want him to undergo intensive interrogation; but lacking proof that he fits the definition, that shouldn't happen.]
"It is impossible for us to gather the evidence in just a few days to determine whether or not this individual should be held for questioning under the law of war," Graham told reporters.
[Once you do gather the evidence, then you may question him under the law of war. Not before.]
[Once you do gather the evidence, then you may question him under the law of war. Not before.]
In the wake of 9/11, Congress passed a joint resolution called the Authorization for Use of Military Force, which granted the president the power to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."
[The President has determined, at least for the time being, that Dzhokhar isn't one of those persons or affiliated with one of those organizations or nations.]
[The President has determined, at least for the time being, that Dzhokhar isn't one of those persons or affiliated with one of those organizations or nations.]
A Supreme Court ruling three years later seemed to suggest that a U.S. citizen captured while fighting for al-Qaida could legally be held as an "enemy combatant," but left unanswered was how to proceed if the accused is nabbed on U.S. soil.
[SCOTUS "seemed to suggest?" Is our High Court so wishy-washy that they can't come right out and say so in clear, unambiguous language? Once a USA citizen is captured "while fighting for al-Qaida," and once it becomes known by his captors that he is a USA citizen, he should be arrested for treason. And that would make him eligible to be tried in a USA court (not a military tribunal) as indicated in the Constitution where it defines treason, and therefore he would have the full protection of the Bill of Rights. If we can't allow that much, then the glory of what it means to be a USA citizen is compromised.]
[As for SCOTUS leaving "unanswered {as to} how to proceed if the accused is nabbed on U.S. soil" - that's just cowardice on the part of our justices.]
[SCOTUS "seemed to suggest?" Is our High Court so wishy-washy that they can't come right out and say so in clear, unambiguous language? Once a USA citizen is captured "while fighting for al-Qaida," and once it becomes known by his captors that he is a USA citizen, he should be arrested for treason. And that would make him eligible to be tried in a USA court (not a military tribunal) as indicated in the Constitution where it defines treason, and therefore he would have the full protection of the Bill of Rights. If we can't allow that much, then the glory of what it means to be a USA citizen is compromised.]
[As for SCOTUS leaving "unanswered {as to} how to proceed if the accused is nabbed on U.S. soil" - that's just cowardice on the part of our justices.]
Republican senators said this weekend that the enemy-combatant designation was [even in the absence of proof] appropriate in the case of Tsarnaev, the Kyrgyzstan-born naturalized U.S. citizen. He was charged today with using a weapon of mass destruction in connection with the blasts that killed three and wounded at least 176 last week.
"I think we should stay with enemy combatant until we find out for sure whether or not there was a link to foreign terrorist organizations," Sen. Dan Coats, R-Ind., told ABC's George Stephanopoulos on "This Week."
[Coats is putting the cart before the horse. Once "we find out for sure {that there is} a link to foreign terrorist organizations," then designate him as an enemy combatant.]
[Coats is putting the cart before the horse. Once "we find out for sure {that there is} a link to foreign terrorist organizations," then designate him as an enemy combatant.]
"Even though he's a citizen. There have been exceptions to this before with the public safety issue, of course, on Miranda rights. I think we ought to keep that option open until we find out whether or not there was a connection to a terrorist organization."
[The public safety exception was an invention of the Supreme Court which, even if it were valid, doesn't apply in this case. The whole world knew well in advance of their actual capture who the authorities were looking for. And everyone knew when Dzhokhar was captured and that he was unable to talk immediately. Therefore, any member of a cell known to this suspect would have either changed or abandoned his own plans to do anything to threaten public safety. Therefore, the public safety exception wouldn't apply even if it were Constitutional.]
[We should carefully consider this exception, since it's not much of a leap to reach this point: "It's okay to torture a suspect if public safety demands it."]
[The public safety exception was an invention of the Supreme Court which, even if it were valid, doesn't apply in this case. The whole world knew well in advance of their actual capture who the authorities were looking for. And everyone knew when Dzhokhar was captured and that he was unable to talk immediately. Therefore, any member of a cell known to this suspect would have either changed or abandoned his own plans to do anything to threaten public safety. Therefore, the public safety exception wouldn't apply even if it were Constitutional.]
[We should carefully consider this exception, since it's not much of a leap to reach this point: "It's okay to torture a suspect if public safety demands it."]
Sen. Chuck Schumer disagreed.
"I think that the good news is we don't need enemy combatant to get all the information we need out of him," Schumer, D-N.Y., said on CNN's "State of the Union" Sunday. "The one court that has ruled has allowed a lot of flexibility in the public safety exception before you Mirandize somebody.
"But second, at any time, what's called a HIG, a high-value interrogation group composed of the FBI, CIA and anyone else, can question him without a lawyer in a secured situation and find out whatever they need."
[Suppose this suspect hadn't been Mirandized but he, knowing he was entitled to counsel, demanded a lawyer. Just because he wasn't read his rights doesn't mean that he doesn't have any. Schumer was wrong to say a HIG "can question him without a lawyer." And by "secured location," does Schumer mean "out of the prying eyes of any neutral third party?" If I was in Dzhokhar's shoes, I would definitely not want to be left alone with a HIG, since (if left to their own devices) they might be tempted to bend a few rules.]
[Suppose this suspect hadn't been Mirandized but he, knowing he was entitled to counsel, demanded a lawyer. Just because he wasn't read his rights doesn't mean that he doesn't have any. Schumer was wrong to say a HIG "can question him without a lawyer." And by "secured location," does Schumer mean "out of the prying eyes of any neutral third party?" If I was in Dzhokhar's shoes, I would definitely not want to be left alone with a HIG, since (if left to their own devices) they might be tempted to bend a few rules.]
Carney affirmed Monday that the White House sides with Schumer, deeming it unnecessary to call 19-year-old Tsarnaev an enemy combatant.
[Not only is it "unnecessary," it's not possible since (again) there's no evidence to support such a label.]
[Not only is it "unnecessary," it's not possible since (again) there's no evidence to support such a label.]
...
...
GOP Sen. Graham took issue with the idea that a lawyer might be present during questioning, wresting control of the interrogation away from U.S. intelligence gatherers.
["Wresting control?" In this country, power is shared with no single entity being allowed to completely control anything. Any defense lawyer present would be entitled to his input, to object, and to insist that any interrogation be videotaped. Of course, the prosecution could make a motion to a judge that such a taping be viewable only by the judge, who would have the power to decide if a jury should see the footage.]
["Wresting control?" In this country, power is shared with no single entity being allowed to completely control anything. Any defense lawyer present would be entitled to his input, to object, and to insist that any interrogation be videotaped. Of course, the prosecution could make a motion to a judge that such a taping be viewable only by the judge, who would have the power to decide if a jury should see the footage.]
"There's a disturbing pattern here, quite frankly, of not gathering intelligence when that opportunity exists," he said.
[You may gather your intelligence, but you have to follow certain rules in doing so. You can't do whatever you want. Sorry, it doesn't work that way.]
[You may gather your intelligence, but you have to follow certain rules in doing so. You can't do whatever you want. Sorry, it doesn't work that way.]
But Antonia Chayes, a professor at the Fletcher School of Law and Diplomacy at Tufts University in Medford, Mass., called the idea of holding Tsarnaev under that designation "hare-brained" and "ridiculous," saying it is generally reserved for those engaged in conflict on the battlefield who can't be extradited to the United States.
[What nonsense! Those engaged in conflict on the battlefield can eventually be extradited to the USA. What on earth does she mean by "can't be extradited?"]
[What nonsense! Those engaged in conflict on the battlefield can eventually be extradited to the USA. What on earth does she mean by "can't be extradited?"]
Although Tsarnaev will not be questioned as an enemy combatant, he also will not be read his Miranda rights before being interrogated by the HIG group to which Schumer referred.
[But, again, suppose the accused had demanded that a lawyer representing him be present?]
[But, again, suppose the accused had demanded that a lawyer representing him be present?]
Under an exception intended to preserve public safety, the Justice Department has decided that the surviving suspect will be questioned without first hearing that he has the right to a lawyer or to remain silent because of concerns of an imminent threat.
[Even though Justice decided he won't hear about his rights, are they saying he doesn't have them? Another thing: I hope Tsarnaev's attorney makes a motion that none of his comments made prior to being Mirandized be admissible in court. Since he was so badly wounded, even if he had been Mirandized, he was in such traumatic pain (undeniably so) he should have been judged temporarily incompetent to be subjected to questioning in the first place. The HIG team might have gleaned useful intel from an incapacitated man (fair? enough, but I doubt they did), but the prosecution shouldn't be allowed to use that impaired testimony in court.
[Even though Justice decided he won't hear about his rights, are they saying he doesn't have them? Another thing: I hope Tsarnaev's attorney makes a motion that none of his comments made prior to being Mirandized be admissible in court. Since he was so badly wounded, even if he had been Mirandized, he was in such traumatic pain (undeniably so) he should have been judged temporarily incompetent to be subjected to questioning in the first place. The HIG team might have gleaned useful intel from an incapacitated man (fair? enough, but I doubt they did), but the prosecution shouldn't be allowed to use that impaired testimony in court.
...
...
A conviction could be put in jeopardy if DOJ waited an unreasonable amount of time to Mirandize the suspect, according to Chayes of Tufts University, but that would depend on the length of time, the judge and the facts of the case, many of which are unclear to the public.
"I think it really turns on the facts, and we don't know all the facts," she said. "Is there evidence of other participants of this that we have not been informed about? Are there rumors about it? Are there hints about it?
"If he's kept like that for, let's say, three weeks, you begin to wonder how in the world can they justify that. But if it's three days or even five days or something like that, then that sounds to me like reasonable."
[No, it is not "reasonable" to allow any amount of time. Once he's in custody, he has his rights and should be Mirandized immediately. The state seems to be saying, "By us not reading you your rights, you don't have those rights." I don't think we want to go down that slippery slope.]
[No, it is not "reasonable" to allow any amount of time. Once he's in custody, he has his rights and should be Mirandized immediately. The state seems to be saying, "By us not reading you your rights, you don't have those rights." I don't think we want to go down that slippery slope.]
...
What about trying him for treason?
Article III, Section 3 of the US Constitution, defines treason as follows: "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."
The difficulty here lies in the last sentence. As for "two witnesses," did anybody actually see either of these brothers plant those bombs? Even if videotapes show them leaving backpacks at the scene, can those tapes be counted as "witnesses" since the concept of taping didn't even exist when the Constitution was written? Then of course there's the matter of "confession in open court." Even if the defendant confesses before the trial commences, he could refuse to confess in open court. Any prior confession would be irrelevant to the charge of treason.
I've never been comfortable with these words in the quote cited above: "adhering to their enemies, giving them aid and comfort." That sounds unconstitutionally vague. For instance, critics of the American Way such as myself could be accused of giving comfort to our enemies or even of aiding them by undermining public confidence in our system.
End Note: All those Bullets*
What about all those bullets fired at the boat where Dzhokhar was hiding? There are reports from unnamed police sources saying the suspect was unarmed, which contradicts the official version that cops were being shot at. But even if Dzhokhar was armed and was shooting at the police, I don't see why they returned fire. They had him surrounded; he wasn't going anywhere. So shooting at him seems to contradict the claim that they wanted him alive for questioning. If the public safety exception was going to be invoked at his hospital bed - denying him the reading of his Miranda rights - then why wasn't the public safety consideration in operation in the field? That alone should have stopped the cops from shooting at what was basically a sitting duck.
I suppose they might claim they had to shoot in order to discourage him from shooting at them and maybe hitting innocent bystanders. But those very same bystanders could have just as easily been hit by friendly fire. And besides, the cops should have withheld fire in the name of the greater public safety issue which concerned questioning the suspect to learn the identities of other conspirators who might be ready to attack with more explosives.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Steven Searle, former candidate for US President (in 2008 and 2012)
Founder of The Independent Contractors' Party
"All I can hope for is, the public continues to maintain interest in this case, which can teach us a lot about ourselves."
Contact me at bpa_cinc@yahoo.com
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