Dzhokhar Tsarnaev as enemy combatant: Hating the Constitution

The left isn't the only group that doesn't like the Constitution; the right doesn't much care for it either. Photo: AP

WASHINGTON, April 22, 2013 — What do John McCain, Lindsey Graham, President Obama, and the reflexive apologists for expanding Administration police power at MSNBC have in common? A dislike for the Constitution.

“If captured, I hope [the] Administration will at least consider holding the Boston suspect as [an] enemy combatant for intelligence gathering purposes,” said Graham. “If the Boston suspect has ties to overseas terror organizations he could be treasure trove of information. … The last thing we may want to do is read [him the] Miranda Rights telling him to ‘remain silent.’”

The public safety exemption for reading a suspect the Miranda rights are meant to allow law enforcement to get information on an imminent threat. “Imminent” is usually understood to mean hours, not days, but in Dzhokhar Tsarnaev’s case, there’s an apparent inclination to interpret imminence liberally. The Department of Justice announced its intention to interrogate him not just about possible bombs left lying around Boston, but “to gain critical intelligence.”

This is nothing new. The 1984 Supreme Court ruling in New York v. Quarles created a narrow exception to Miranda, an exception that the Obama Administration has vigorously expanded. In a secret 2011 DoJ memo, the Adminstration argued that “the magnitude and complexity of the threat often posed by terrorist organizations” requires that we pursue “a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case. …

“There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.”

SEE RELATED: The Bill of Rights was written for Dzhokar Tsarnaev

As Slate’s Emily Bazalon points out, “Who gets to make this determination? The FBI, in consultation with DoJ, if possible. In other words, the police and the prosecutors, with no one to check their power.” 

The Quarles decision was written by extremely conservative Supreme Court justices who disliked Miranda. Thurgood Marshall argued angrily that it was a stealth attempt to gut Miranda, and he wasn’t without justification. Liberals hated the decision and railed against it. Thus it’s arresting to note the zeal with which the Obama DoJ has embraced it, expanded upon it, and made it a potent element of enhancing their scope of intelligence gathering.

Obama took an oath to protect and defend the Constitution of the United States. That is his minimum responsibility, the very least he can do. Let it not be said that Obama won’t do the least he can do to defend the Constitution. He has apparently rejected the idea of treating Tsarnaev as an enemy combatant and sending him indefinitely to Guantanamo until he can think of something worse to do to him. He has suggested that Tsarnaev will eventually get a lawyer and a trial, just not right away. 

And so we applaud Obama for suggesting that he looks favorably on something so basic as ensuring the right of an American citizen to be represented by counsel and tried in a civilian court of law. If Tsarnaev is lucky, he won’t suffer the fate of fellow American Jose Padilla, who in 2002 was arrested in Chicago, classified by the Bush Administration as an enemy combatant, imprisoned in a military brig without charges, counsel or habeas corpus, and left in that limbo for almost four years.

SEE RELATED: The tragedy of the Tsarnaev brothers

It seems self evident that an American citizen who commits a crime against American citizens on American soil should be subject to American law. He should get the same constitutional rights as any other American citizen. There’s no clause in the Constitution that denies constitutional protections for bombings. There’s no second-class set of protections for naturalized citizens. 

An American bomber is an American. He may be a terrorist, though Alan Dershowitz pointed out on the BBC that “It’s not even clear under the federal terrorist statutes that [the bombing] qualifies as an act of terrorism.” Even if it was, the Constitution doesn’t recognize that special category of criminal, which category, if Joe Biden is to be believed, includes most of the GOP House and Senate caucuses. The Constitution still applies. We may not like Tsarnaev, we may execute him once we convict him of murder, but if we suspend the Constitution in order to try and punish him in a way we think more appropriate, we might as well just shred the document and be done with it.

That would apparently be fine with Graham and McCain. Their contempt for the Constitution is a distasteful example of political bipartisanship; a lot of Democrats don’t much like it either, nor is it a big hit in the Obama DoJ. Even people who consider themselves patriots and who say they love this country are willing to dispense with the Constitution with a shrill “it’s not a suicide pact” when they’re scared enough.

The Constitution can’t survive if it isn’t vigorously defended by people who take it seriously. The ease with which we abandon Constitutional protections is astonishing. It doesn’t require that a tyranical administration crush our rights; we sometimes demand that those rights be taken. So it is here. The rights of Dzhokhar Tsarnaev may strike many as an inconsequential coda to the events last week in Boston, but in fact they’re the entire point. We’re a free nation, and freedom is a huge risk. Wars on drugs and terror have constricted our freedom by demonstrating to us just how risky freedom is; too many of us are too happy to be rid of it.

What happens to Dzhokhar Tsarnaev isn’t important at this point. How it happens to him is paramount. If he’s going to be executed, let’s hope that it’s by the book, and that he goes to his death or a life in prison knowing that he got what he deserved from a country that deserved much better from him than he and his brother gave it.


READ MORE by Jim Picht at Stimulus That!

James Picht is the Senior Editor for Communities Politics and teaches economics at the Louisiana Scholars’ College in Natchitoches, La., where he went to take a break from working in Moscow and Washington. But he fell in love with the town and with the professor of Romance languages, so there he stayed. Now he teaches, annoys his children, and makes jalapeno lemonade. He appreciates the irony of MSNBC support for squashing Miranda. He tweets, hangs out on Facebook, and has a blog he totally neglects at 


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Jim Picht

James Picht is the Senior Editor for Communities Politics and teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years working in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He returned to Ukraine recently to teach principles of constitutional law and criminal procedure at several Ukrainian law schools for a USAID legal development project. He has been writing at the Communities since 2009.

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