I moved away from Boston less than one year ago. I walked the streets where the events of last week transpired. I know people who ran the marathon and have friends who were watching in person this year. Many people were affected directly or indirectly by the events in the Boston area last week and my thoughts are with those harmed and their friends and families.
The cowardly actions of at least two extremists that captured national attention last week led to a major U.S. city, for the first time ever, essentially shutting down to allow for a man hunt to take place.
Now that one suspect in the bombings is dead and the other is in custody, we must ask: how should we handle this case?
Politico released a detailed analysis of the legal questions worth considering regarding the Boston bombing suspect. These issues focus on Miranda warnings, whether the death penalty is a possibility, and what court will try the suspect.
First, we need to consider the issue of Miranda warnings. Politico reports that an official with the Department of Justice has stated that “No Miranda warning to be given.” Miranda warnings are what you see on Law & Order when a suspect is arrested – “You have the right to remain silent, everything you say can and will be used against you in a court of law, you have the right to an attorney, [etc].” Since 1966 when the Supreme Court decided it was so, law enforcement officers are generally required to give Miranda warnings to suspects when arresting them before starting an interrogation. This right is not absolute, but it is and should be strong. In refusing to give the suspect a Miranda warning, the government is relying on the public safety exemption, which allows law enforcement to question a suspect upon arrest prior to giving a Miranda warning if those questions regard an imminent threat to public safety.
Some individuals and organizations are questioning the government’s decision not to provide the suspect with a Miranda warning. Alan Dershowitz, Harvard Law professor and criminal defense expert said on CNN, “The FBI is making a serious mistake by not giving him his Miranda warning…Let’s not give him any excuse to be able to successfully argue that his rights were denied.”
On the second issue, the death penalty is a possibility. While Massachusetts does not allow for the death penalty, the suspect could be tried and convicted of a capital crime under federal law. Unlike Texas and Florida, the federal government sentences relatively few people to death. However, the federal government is especially likely to seek the death penalty in cases involving domestic terrorism, such as it did in the case of the Oklahoma City Bomber, who detonated a bomb in front of a federal building, killing 168 and murdering over 800 in 1995.
The third issue is what court should try the suspect. Senator Lindsey Graham of South Carolina along with a small number of other republican lawmakers have suggested that the bombing suspect in custody should be given over to military officials to be sent to Guantanamo Bay and tried in a military tribunal as an enemy combatant. This is legally problematic for at least a couple of reasons: The suspect is an American citizen and no evidence has been released to the public to tie the suspect’s actions to a foreign military or organization.
Although current law is somewhat ambiguous as to whether an American citizen who is not a member of an organized military or certain foreign organizations (e.g. the Taliban or Al Queda) can be tried by military tribunal, allowing American citizens to be tried by the military sets a dangerous precedent. As a society of law and order in which freedom and respect for the constitution are and should be prioritized, it is dangerous to suggest that an American citizen, even though he is accused of heinous crimes, should be deprived of the due process of laws and a trial by jury.
This last issue, however, was settled this afternoon. The suspect was charged by federal prosecutors today, demonstrating that the Obama administration has decided to try the suspect in federal court rather than through a military tribunal.