A debate has ensued over the issuance or lack thereof of the Miranda warnings to the surviving Boston bomber, Dzhokhar Tsarnaev. For the benefit of anyone who doesn't understand the controversy, allow me to explain.
The Fifth and Sixth Amendments to the United States Constitution read thus:
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 cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense 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.
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 defense.
Many people are familiar through movies with the Fifth Amendment and the defendant's right to plead the Fifth. Less familiar to people both within and without the United States is the Sixth Amendment which, essentially, boils down to a right to a speedy trial, a right to confront one's witnesses and the right to an attorney. The last portion of the Sixth Amendment was upheld in the case of Gideon v. Wainwright.
The Miranda warnings issue from the case Miranda v. Arizona and a lesser-known case that came afterwards, Escobedo v. Illinois. What people confuse is that the Miranda warnings are not constitutional protections in and of themselves but the implementation of constitutional protections by advising the person under arrest of their constitutional rights. But as with other constitutional rights, there are limitations and exceptions. For example, as Justice Oliver Wendell Holmes famously wrote, a person does not have the unfettered right to shout Fire! in a crowded theater where there is no fire for obvious public safety reasons. Likewise, although the Second Amendment guarantees citizens the right to bear arms, there is no reasonable need for a citizen to be able to own and operate an Abrahms M-1 tank. The limitations and exceptions have to be reasonable.
In the present case, prosecutors have declared that they are claiming the public safety exception to the Miranda doctrine, and I believe they are right, provided they don't abuse the exception. I don't believe there is any question as to guilt, so any questions they ask in that vein are both unnecessary and probably violative of the exception. But to ask questions about other bombs, other members of a cell, whether there's a factory somewhere, anything that is designed to protect the country and its citizens, is probably fair game.
Those people who complain about Tsarnaev's rights being violated should consider what would happen in another country. Were he caught in the Middle East, there is little doubt that he would be subjected to torture on his way to the square where he would be beheaded. In Europe, although he wouldn't be given the death penalty, there would be less protection for him while in custody than he is receiving here. In England, he's presumed guilty and would have to prove his innocence. So no matter how off-putting this move by the prosecutors might seem to be, he's still getting off easy.
Insofar as the move by some senators to declare him an enemy combatant and ship him to Gitmo is concerned, I think that's a non-starter for a couple of reasons. First, Tsarnaev is an American citizen. He may have been engaged in jihad, which would open him to a charge of treason, but that doesn't mean he should be subjected to the Code of Military Justice. Federal law has more than enough available to charge and convict him for treason. Second, he committed the act on American soil. He wasn't in Yemen or Somalia directing operations against the United States. Third, even if he's an operative of a foreign force bent on destroying America, there is no declaration of war by another country that would subject him to enemy combatant status. The problem with the internees in Gitmo is that they are affiliated with a group or groups that have no allegiance to any one nation. At this point, it is unclear with what Tsarnaev is affiliated, although an off-shoot of Al Qaeda is the most reasonable culprit.
Tsarnaev will be incarcerated where he will die eventually, and that's what should happen. Right now, it's important for authorities to secure the public's well-being with information that only he can provide. His motivation to cooperate is a possibly reduced sentence, although I'm not sure how life in prison without possibility of parole can be whittled down meaningfully to sixty years to life.
The political rhetoric needs to stop. The advancement of agendas needs to stop. We need to protect America and its citizenry. That is the paramount concern here.
(c) 2013 The Truxton Spangler Chronicles
No comments:
Post a Comment