I realize this will be most controversial given the current climate of fear and hate. However, I think we, as Americans, tend to react to tragic events with knee-jerk emotions. Instead, we should all take a collective deep breathe and wait for real facts. This emotional reaction to events, instead of critical, logical thinking, is one of the main reasons for so much mis-reporting and disinformation churned out by the mainstream media. We want our news fast, and mesmerizing, even if it’s light on facts and discernment. The mainstream media feeds into this need for stimulation of the emotions; in fact it’s the modus operandi. This “MO” has been deployed over and over throughout the years; and now the media has this tactic down to a science. So, let’s break the cycle of spin, take a deep breathe, and look at facts.
First, let’s look at some basic rights we, and Dzhokhar Tsarnaev, should enjoy as American citizens. Those include Miranda Rights, the Constitution and the Bill of Rights. The Miranda Rights, or Miranda Warning, is part of a preventive criminal procedure rule that law enforcement is required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. In Miranda vs Arizona, the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth and the Sixth Amendment right to counsel. Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained, but may not use that person’s statements to incriminate him or her in a criminal trial. Any information obtained during that time can be used for investigative purposes only and not used against him in a court of law. However, there is the “public safety” exception. This limited and case-specific exception allows certain unadvised statements (given without Miranda warnings) to be admissible into evidence at trial when they were elicited in circumstances where there was great danger to public safety. The public safety exception derives from New York vs Quarles, a case in which the Supreme Court considered the admissibility of a statement elicited by a police officer who apprehended a rape suspect who was thought to be carrying a firearm. Under this exception, to be admissible in the government’s direct case at a trial, the questioning must not be “actually compelled by police conduct which overcame his will to resist,” and must be focused and limited, involving a situation “in which police officers ask questions reasonably prompted by a concern for the public safety.”
In 2010, the Federal Bureau of Investigation encouraged agents to use a broad interpretation of public safety-related questions in terrorism cases, stating that the “magnitude and complexity” of terrorist threats justified “a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case,” continuing to list such examples as: “questions about possible impending or coordinated terrorist attacks; the location, nature and threat posed by weapons that might pose an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks.” A Department of Justice spokesman described this position as not altering the constitutional right, but as clarifying existing flexibility in the rule,
In short, Dzhokhar Tsarnaev, was questioned under this public safety exception, despite only circumstantial evidence. So, what should you take away from this bit of information? Don’t be at the wrong place at the wrong time seen arriving and leaving with a backpack, that doesn’t match the color of the backpacks detonated. Also, avoid older brothers who have dubious intelligence agency connections. (My added emphasis).
Next, let’s look at your Constitutional Rights as an American citizen, which includes Dzhokhar Tsarnaev. For this, I pull out my trusty “Citizens Rule Book” that indeed rests on my bedside table. I believe Amendments Four through Eight would be most pertinent to this discussion. The Fourth Amendment reads as follows: The right of the people to be secure in their persons, houses, papers, and effect, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the places to be searched, and the persons or things to be seized. This does not mean shooting up a boat with an unarmed suspect inside like Bonnie and Clyde. This also does not mean cheering for martial law and being dragged out of your homes at gun point BOSTONIANS.
The Fifth Amendment states: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in the cases arising in the land or naval forces, or in the Militia, when in the actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation. Getting shot at while unarmed is not due process of law.
This brings up the “enemy combatant” status that Lindsay Graham and John McCain brought up. The definition of an “enemy combatant” by William J. Haynes II, General Counsel of the Department of Defense, in 2002 reads as follows: An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. However, there is this caveat. According to the Supreme Court in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.” Further still is this enemy combatant status is delineated. Enemy combatant is a general category that subsumes two sub-categories: lawful and unlawful combatants. See Quirin, 317 U.S. at 37-38. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention. So, was Dzhokhar Tsarnaev considered to be lawful or unlawful? If lawful, the Boston Police and FBI violated POW status and therefore are war criminals. So, who decides combatant status? The determination of enemy combatant status has traditionally resided with the military commander who is authorized to engage the enemy with deadly force. In this regard, the task ultimately falls within the President’s constitutional responsibility as Commander in Chief to identify which forces and persons to engage or capture and detain during an armed conflict. Of course, there is no requirement that the President make such determinations personally, and in the vast majority of cases he does not do so. Rather, consistent with longstanding historical practice and applicable rules of engagement, the task is normally a function of the military command structure. There is no evidence that Dzhokhar Tsarnaev ever had military training, anywhere.
Article Five of the Third Geneva Convention states: that the status of a detainee may be determined by a “competent tribunal .” Until such time, he is to be treated as a prisoner of war. After a “competent tribunal” has determined that an individual detainee is an unlawful combatant, the “detaining power” may choose to accord the detained unlawful combatant the rights and privileges of a prisoner of war as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be “treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial. So, to the neo-cons Lindsay Graham and John McCain; Dzhokhar Tsarnaev NEVER qualified as enemy combatant.
Let’s return to the Bill of Rights and the Sixth Amendment. It reads: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defence. This Amendment clearly mentions nothing about being convicted in the court of public opinion without due process FOR A REASON.
The Seventh Amendment states: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of common law. Again, assuring trial by a jury of your peers, not TMZ culture or firing squad.
Lastly, the Eighth Amendment reads: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Again, I believe a hail fire of bullets while unarmed requiring an emergent tracheostomy at the scene should be considered “cruel and unusual punishment”.
In recent memory, I do not recall Timothy McVeigh, or his family (regardless of if you believe either of these “official” stories) ever being so vilified by the media and public at large. This despite the deaths of 168 people, 6 of which were children and 680 injured. Timothy McVeigh was never charged as an “enemy combatant” despite military training, and his death certificate states he was still active US Army at the time of his death. Why are the Tsarnaevs being so demonized when the McVeighs were not? As I stated earlier, it matters not if you believe the official story of the Oaklahoma City or Boston bombings for this discussion. Timothy McVeigh was given due process as a US citizen with full rights under the law. Dzhokhar Tsarnaev is a US citizen NOT given his full rights under the law. Is this disparity because Dzhokhar Tsarnaev’s religion? Islam has become our new American “boogeyman”. This was achieved quite easily with the short American attention span, the need to be spoon fed information, and the “herd” mentality. America has turned into nothing but a bunch of blood thirsty mongrels looking for the next gladiatorial sport to keep us enraptured.
“When people care deeply about the same things, when they share what the existential theologian Paul Tillich called “ultimate concern”, they are sometimes incredibly sensitive to different shades of opinion. Differences of opinion may lead to murderous hatred, so that my greatest enemy is not the alien conqueror coming over the horizon with bloody tears carved into his cheeks but a brother or a sister I rub shoulders with in the congregation.” Through “ultimate concern” and generalized hatred of muslims, many of those who would speak out are silienced . You are called a communist, a traitor or worse.
Recall the words of Martin Niemöller (paraphrase):
When the Nazis came for the communists, I remained silent; I was not a communist. When they locked up the social democrats, I remained silent; I was not a social democrat. When they came for the trade unionists, I did not speak out; I was not a trade unionist. When they came for the Jews, I remained silent; I wasn’t a Jew. When they came for the Catholics, I did not speak out; I was not a Catholic. When they came for me, there was no one left to speak out.
These are cases of falsely convicted people only on circumstantial evidence that had their lives shattered: links to full list will be posted
Freddie Lee Gaines
These are just 3 of 2000 people who were falsely convicted of crimes they did not commit. So, in closing, why should you care about Dzhokhar Tsarnaev? Because circumstantial evidence and false convictions are very real. Do not think for a moment it cannot happen to you; because it can. If he is guilty, let him have his day in court and let the proper sentence be rendered. Conservatives want to maintain the Second Amendment; which I whole heartedly support. However, there are Twenty-Six more you should not be so eager to shred.
Sources and References:
Miranda Rights: http://www.mirandarights.org/
Miranda Warning: https://en.wikipedia.org/wiki/Miranda_warning
Council on Foreign Relations; Enemy Combatants: http://www.cfr.org/international-law/enemy-combatants/p5312
Enemy Combatants: https://en.wikipedia.org/wiki/Enemy_combatant
Unlawful Combatants: https://en.wikipedia.org/wiki/Unlawful_combatant#Combatant_Status_Review_Tribunal
Lawful Enemy Combatant: https://en.wikipedia.org/wiki/Lawful_enemy_combatant
Paul Tillich Quote: “The Secret History of the World” Mark Booth. pg 232
Full List of exoneration from 1989-2012: