We’ve just learned that Dzhokhar Tsarnaev has finally been read his rights as a US Citizen undergoing criminal proceedings.
Does Tsarnaev, an American citizen for just over seven months before he was connected to the Boston bombings, deserve the same treatment as an American-born citizen?
I’m sure there are thousands of opinions out there based on exhaustive legal research into when it is and when it isn’t okay to suspend habeus corpus for Americans, and when it’s okay not to read someone their rights, etc., but I tend to agree with Alan Dershowitz on this one. We did well by ensuring Tsarnaev had his rights read to him, though it should have been sooner.
Why?
Because he’s an American citizen.
When British soldiers killed five Bostonians in 1770, Bostonians — chief among them, John Adams — made a concerted effort to give their antagonists every right and benefit provided for in British Common Law and the Charter of Massachusetts. Surely, thousands of Bostonians then wished strongly just to string up Capt. Preston along with his soldiers for their hasty triggers and poor judgment.
But they didn’t.
It was important to contemplative moderates like Adams, John, that the soldiers receive a fair and just trial so that the British would have no case for retaliation upon the finding of a verdict. It was equally important to more vocal conservatives like Adams, Samuel, because the integrity of the Massachusetts Charter was at stake. To Adams, S., the Massachusetts Charter was as revered to him as many modern conservatives revere the US Constitution. It was the manifest social compact between Massachusetts residents and the King and the basis for all local law. Furthermore, when coupled with British Common Law, it was absolutely clear to Samuel that despite his own vehement railings against that British atrocity, and an absolute plaint of their guilt at all costs, they deserved to be defended by the best attorneys. When Capt. Preston was acquitted, Samuel was devastated, but he accepted the judicial proceedings as fair and just. He knew it would show the world that his colony was capable of judging according to law, not according to emotion.
Samuel Adams hated the way the British administration began to trample the Massachusetts Charter, and to approach the application of Common Law more liberally than he understood it. But it was exactly this hatred for a progressive interpretation of ministerial execution and legal jurisprudence that made him and other Bostonians insist on the carefullest trial of massacreurs they KNEW were guilty.
Likewise, we would have been foolish to abandon Constitutional principles just because it was convenient or emotional, and here are several reasons why we shouldn’t have.
He is an American citizen. Just because he isn’t read his Miranda rights doesn’t mean he doesn’t have them. He does not have to incriminate himself; we cannot force him to speak, and we cannot impute any guilt upon him for silence.
He is an American citizen. I’ve been hearing conservatives all day talk about how he must be designated an enemy combatant, and would presumably lose all rights guaranteed in the Constitution because he is in a state of rebellion. We must be VERY careful here, and I absolutely agree with the Obama administration to try this man in the civilian courts. Remember, if we designate someone an enemy combatant that means we are authorizing the use of our MILITARY force upon him. And while we may say, “Sure! Use the military on this bastard!” right now, think of how the government may loosely use the term in future cases. Tsarnaev, an American citizen, broke dozens of federal, state, and local laws — but was he an enemy combatant? Was he sponsored by a foreign government acting in a capacity of war? Had he even “seceded” from the Union or was he operating from territory outside US jurisdiction? Or was he radicalized to destroy an institution similar to how Timothy McVeigh was?
He is an American citizen. In the eyes of the court — whether it be court-civil or court-martial — this is his primary status. It’s not his ethnic background. It’s not his religion. It’s not even his brother’s foreign associations. He is a citizen, and we cannot as a country rip up our portion of the social contract simply because he held it in low regard. And we certainly cannot rip up our portion of the contract because Tsarnaev is a Muslim any more than Massachusetts could abandon their charter in 1770 because one of the witnesses favorable to Capt. Preston was a man “who in all probability died in the faith of a roman catholick.”*
Insisting we redefine how we treat Tsarnaev under constitutional principles may help us to feel vindicated in the cause of his justice. But if we as a country succeed in treating him differently for his crime simply because it was atrocious and his motives appear hateful, we have struck the very heart of what it means to be a citizen, and we should all live in fear of being designated an enemy to the state when our refusal to submit to unjust laws brings government coercion through military force. This may seem a stretch, you say, but we wouldn’t be the first country founded on a stringent Constitution to stretch its application out of convenience and for cultural security.
Like in Boston 243 years ago, it is wise to afford this defendant the same Constitutional rights the British soldiers received — not only because our own charter is the supreme law of the land, but because it shows the world we believe it to be so.
—-
*See Cushing, ed. The Writings of Samuel Adams, 2:91.
