Does a Terrorist Have Constitutional Rights?

Thursday, April 25^th, 2013

Baton Rouge, Louisiana

THE BOMBER, MIRANDA AND THE CONSTITUTION!

Constitutional rights for the Boston bomber?  Are you kidding?  For days we watched the video footage of Dzhokhar Tsarnaev walking the streets of Boston with a backpack loaded with a homemade bomb.  A growing list of circumstantial evidence points to his guilt.  Yes, he is a naturalized American citizen, but we watched this drama unfold on TV and he seems to be about as guilty as you can get.  So why does this heinous accused murderer deserve any rights at all?

Polls taken by local media across the country show that the public considers the bomber to be a terrorist.  South Carolina Senator Lindsey Graham summed up the prevailing view in a tweet: “The Law of War allows us to hold an individual in this scenario as an enemy combatant without Miranda warnings or appointment of counsel.  The last thing we may want to do is to read Boston suspect Miranda Rights.”  So the question is: Does the constitution protect the rights of every American citizen in the United States?

First of all, were these two brothers enemy combatants or terrorists?  There is no evidence so far that they received either encouragement or specific help from any outside source.  They were apparently religious fanatics, but is that enough to call this a terrorist attack?

If these two distorted and warped young men are to be labeled terrorists or enemy combatants as Senators Graham and McCain have suggested, then what’s the difference between what they did and what happened in Tucson, Columbine, Aurora and Sandy Hook?  At the Sandy Hook elementary school, 26 people were shot and killed including 20 children.  Was the shooter, Adam Lanza a terrorist?  At a movie theater in Aurora, Colorado, 70 people were shot and 12 died.  And how about the Tucson shooting by Jared Loughner, where 19 people were shot including Congresswoman Gabrielle Giffords, and where 6 were killed?  Ten years ago two teenagers killed 12 students, a teacher, and themselves at suburban Denver's Columbine High School.  As horrendous as these killings were -- were any of them really acts of terrorism?

So is the difference one of motive? If you kill for the thrill or because of mental problems, is that different than killing for religious convictions?  And does that mean that the judicial system will now have to make assumptions of what is going on inside your brain?  The courts, wrongly in my opinion, have applied such a subjective standard in hate crimes, where what you think has a bearing on the charges against you.  A killing is a killing no matter what the motive.

Then there is the constitutional requirement to give any accused a Miranda warning, letting him or her know that they have the right to remain silent. That bothers many people.  If the guy commits a crime, why can’t he be grilled as to what he did and who else was involved?  Well, there’s something in the U.S. Constitution called the 5^th Amendment that clearly states that no American citizen shall be compelled in any criminal case to be a witness against himself. Agree or disagree, that’s basic, hornbook constitutional law.

There is one important exception. If the police legitimately think that there is immediate, ongoing danger, where future crimes are about to be committed, then the Supreme Court has created a “public safety” exception.  Once there is evidence that such a danger has passed, then the Miranda warning kicks back in.  In the current Boston case, it became clear after the first interrogation that these two brothers acted alone.  And since the younger Tsarnaev, the sole survivor, is an American citizen, his constitutional right to remain silent protects him.

Bad law you say.  He’s guilty as can be and should be given no such protections.  But as journalist Emily Bazelon points out in Slate:  “Why should I care that no one is reading Dzhokhar Tsarnaev his Miranda rights?  When the wall gets bent out of shape for him, it’s easier to bend out of shape for the rest of us.”

Look, we have to recognize that in a country of over 300 million people, and despite our strengths, there are some damaged or demented souls who, for whatever reason, have grievances that too often explode into violence against innocent bystanders.  This is nothing new in the history of our country.  What is new and troubling is that many government officials at both the state and local level seem to feel that we have to give up many of our enumerated rights and civil liberties in order to deal with these violent acts.

What we face today is the age-old battle to maintain our constitutional freedoms.  Go back to the Nuremberg trials following World War II.  The words of Nazi Field Marshal Hermann Goering ring chillingly true today:  “It is always a simple matter to drag people along whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. This is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country.”

For fully justifiable reasons, we Americans want accountability, revenge, justice, and we want to feel secure.  But the foundation of our country is based on freedom.  That was the whole idea of the founding fathers drafting the constitution in the first place.

These constitutionally guaranteed freedoms are there for the protection of every American.  To limit or cut back on one person undermines the freedoms of each and every one of us.  None of us want an Orwellian future.  We cannot be oblivious to an assault, not only on our safety, but also on our constitutionally guaranteed freedoms.

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“Those who deny freedom to others deserve it not for themselves.”

― Abraham Lincoln

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers throughout the nation and on websites worldwide.  You can read all his past columns and see continuing updates at http://www.jimbrownusa.com.  You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com.