As alleged suspect, Dzhokhar Tsarnaev, 19, lies in a hospital bed awaiting police interrogation just two weeks after the 2013 Boston Marathon bombings and several days after the manhunt that resulted in his capture and the death of his brother Tamerlan, 26, questions have turned to motive.
As the investigation commences, a new question arises as to whether the surviving Tsarnaev brother, a naturalized American citizen, should be tried as a U.S. citizen under the American legal system, or as an “enemy combatant.”
Dr. Michele Grillo of the Criminal Justice Department explained that the term “enemy combatant” is a general category that includes two sub-categories: lawful and unlawful combatants.
She described that while lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention, a treaty that defined humanitarian protections for prisoners of war, unlawful combatants do not receive POW status or the full protections of the Third Geneva Convention.
In the case of Tsarnaev, Grillo expressed, “Many in the U.S. government wanted surviving suspect Dzhokhar Tsarnaev to be treated as an unlawful enemy combatant. As such, he would not receive protections under the Third Geneva convention, nor the civil or federal laws of the United States.”
The Obama administration has retired the term “enemy combatant,” used by the Bush administration to justify the indefinite detention of terrorism suspects after September 11, 2001. However, the President has retained the right to detain indefinitely those who provide ‘substantial support’ to the Taliban, Al Qaeda, or associated forces.
The Obama administration announced on Monday that even though Tsarnaev is being prosecuted under American law, the F.B.I plans to delay reading him his Miranda Rights, citing a public safety exception.
The exception will allow law enforcement officials to first ask Tsarnaev questions relating to any other terrorist or violent attack that could compromise the safety of the American public.
Grillo described how she was relieved to learn that President Obama determined that Tsarnaev was not an enemy combatant, and would be prosecuted under the U.S. civil law.
“When I first learned that Dzhokhar Tsarnaev might be considered as an enemy combatant, my immediate reaction was there is no way the U.S. could legally do this. I also felt that the U.S. would be taking this case too far, thus setting an improper precedent for the future,” she said.
She further explained, “Tsarnaev is a U.S. citizen, and U.S. citizens cannot be tried in military court. Military commissions lack jurisdiction unless a suspect is defined as an unlawful enemy combatant.”
“The U.S. cannot consider a citizen as an enemy combatant, unless the government could prove there is a direct link to a terrorist group, such as Al Qaeda,” she said.
Grey Dimenna, Vice President and the University’s General Counsel, stated his personal belief on the matter.
Dimenna said, “It appears that the White House is correct that under current law, because Tsarnaev is a United States citizen, he must be criminally prosecuted as such and not as an enemy combatant outside the regular court system.”
Dimenna, a graduate of Syracuse University College of Law, who has been practicing law for 34 years, explained that even if there were no law on this matter, he would still support Tsarnaev’s prosecution under the court system as opposed to an enemy combatant.
He said, “One of the bedrocks of our great country are the rights that we enjoy under both federal and state constitutions and laws. Those rights extend to all citizens, including those accused of criminal activity. That includes the concept of innocent until proven guilty and those rights are available to all, even those for which there is little doubt of their guilt.”
Dimenna described how these rights set us apart from many of the terrorist groups who seek to attack the United States, groups who do not believe in such rights and often come from countries that do not extend such rights to their citizens.
“Unfortunately, we have seen over the course of our country’s history that in the face of a crisis that threatens our security, a rush to curtail our constitutional and other rights in the name of protecting ourselves,” he said. “I see the country going down a dangerous road where individual rights are trampled in the name of security.”
Dimenna expressed, “In my mind there needs to be a balance between security and citizens’ rights under the Constitution and laws. One of those rights that I believe needs to be preserved is the right of every citizen charged with a crime to be tried under our judicial system.”
In the wake of the Obama administration’s decision to try Tsarnaev as an American citizen,he has admitted to authorities that he and his brother were planning to drive to Manhattan and detonate their remaining explosives in Times Square, an article from The Washington Post explains.
Unable to speak after being wounded in a shootout with Watertown, MIT police, the 19-year-old college student regained consciousness Sunday night and began answering investigators’ questions in writing. He stopped talking, however, after lawyers were appointed for him, the article described.
Christian Klein, a senior business management major, believes that Tsarnaev should be tried as an enemy combatant. “He just gained full citizenship on September 11th of last year. While yes, he is technically an ‘American’ he is not a native. He and his brother both had no American friends and tried to shadow Chechen/Muslim acts of terror on American citizens.”
He explained his Tsarnaev is being tried for weapons of mass destruction (which is a federal charge and carries a punishment of a death sentence, even in states like Massachusetts that do not allow capital punishment) and also which is rarely ever used on an American citizen.
“I think Timothy McVeigh was the last one to be tried like this for the Oklahoma City bombing. This animal should not be given the option. In my eyes, he waived his citizenship and his status as an American when he chose to harm innocent people and take peoples lives and limbs,” Klein said.
Michael Rosas, a junior communication major, said, “It would be dangerous to make exceptions on certain citizens. Setting that precedent, the ability to make exceptions could have awful consequences.”
He explained how we have put domestic terrorists in jail and have given them the death penalty in the past, and doesn’t see why this case should be any different.
Rosas said, “I think the best idea would be to treat this person as a citizen, not to protect him, but to protect the rights of all citizens because you never know if and when society will turn on you.”
Dr. Gregory Bordelon of the Political Science Department explained that during times of war, the president’s power has become increasingly unilateral despite Congressional efforts to curtail it. Yet, he described, “The American people seem content with this disproportionate balance in times of international hostility.”
He referenced Supreme Court case Ex Parte Quirin (1942), in which German-born U.S. residents, who were Nazi sympathizers, were arrested before they could commit acts of war on the behalf of the Nazi regime, setting a precedent which broadened the scope of executive discretion during times of war.
“This discretion encompasses the processes by which enemy combatants can be tried and the President can elect to have military tribunals to try them in lieu of the civilian court system,” Bordelon said.
He mentioned that Tsarnaev, if held as an enemy combatant, would make it the first time that an American resident was arrested for an alleged terrorist act that took place on American soil that seemingly has no connection to the fight against terrorism or Al-Qaeda.
“We have a strong presumption in our American justice system that all alleged criminals are innocent until proven guilty,” Bordelon said. He explained how the fate of Tsarnaev’s case now ultimately lies with the discretion of the Judicial Branch.
IMAGE TAKEN from stmedia.startribune.com
