If people thought the buzz surrounding all those initial legal moves in the Oscar Pistorius case was obscene, what in the world will they think of the things that will happen soon in Boston – once the trial of Suspect Two/Marathon Bomber/Dzhokhar Tsarnaev actually begins? By J BROOKS SPECTOR.
The moment a pre-trial motion is filed in an open courtroom in Boston, the media horde will descend on the city in such a tsunami court officials are going to need every square inch on the floor of Boston’s cavernous TD Bank Garden – that arena where the Celtics and Bruins play their basketball and ice hockey games – as the site for a press centre, or maybe even they’ll end up using Fenway Park (the city’s hallowed baseball stadium) for the overflow.
For many, this one is almost certain to become the real trial of the century – and poor Oscar Pistorius’s attorneys are going to become nearly invisible also-rans in the media frenzy sweepstakes in comparison. And the Tsarnaev trial in the US hasn’t even started yet.
In the initial days after the bombs exploded at the Boston Marathon, that first fuzzy picture of Suspect Two eventually morphed into Dzhokhar Tsarnaev, a 19-year-old college student of Chechen background who had emigrated to the US a decade ago as part of an already-peripatetic, near-chaotic life. As things stand now, together with his now-dead older brother, Tamerlan, Dzhokhar has been charged with setting off the two bombs, building yet more of these devices, as well as all the resulting deaths of the explosions and the hijacked car chase through the Boston metropolitan area. Dzhokhar was eventually found under a tarpaulin in a boat stored in the backyard of a house in the suburb of Watertown. This was after the entire metropolitan region had been brought to a virtual standstill by the shutting down of public transport and the lock-down of much of the town as well.
By the time Dzhokhar was about to be captured by the police after a chase through the streets in hijacked cars, the brothers’ gun battle with police and then his confused flight into a temporary bolt hole under a tarp, an increasingly furious debate had already broken out in the United States over how he should be treated, once he was finally taken into custody. Moreover, the nature of Dzhokhar’s presumed ethnicity and possible motivations had already begun to roil the ongoing debate over American immigration reform – a fraught topic that for the first time in at least a generation had seemed possible to receive favourable congressional action. And further, once Dzhokhar Tsarnaev was actually captured (and after his older brother was dead), the specific provisions of laws under which he was about to be charged were also provoking consternation – and not a little ridicule at home and abroad. And all of this, again, was before a single element of any trial had taken place.
Even before Tsarnaev was in police custody, Republicans in Congress and elsewhere were already calling for Tsarnaev to be treated as an “enemy combatant” – a decision that would allow him to be held in military prisons and then tried by a military court. Oh, and by the way, this would allow the authorities to ignore giving him most of the civil protections now standard under US criminal law, as part of the major Supreme Court decisions in Gideon v Wainwright and Miranda v Arizona. Not too surprisingly, Republican Senators like South Carolina’s Lindsey Graham were quick to push this approach. In part it was a pandering to public fears the country was about to face a wave of terrorist activity – 9/11 redux. But in part, too, it may have stemmed from legitimate fear that maybe there really was such a movement underway.
But crucially, too, Republicans thought it might also be very useful as a sharp stick poked into the Democratic president’s eye: saying, in effect, that here was a weak president unwilling to take any decisive action over a wanton act of nationally televised, domestic terrorism. That here was a president who preferred to hand over a real life, captured terrorist to the vagaries of that liberal, criminal coddling justice system and even the possibility of getting a conviction thrown out for technical reasons while terrorists ran rampant, yadda, yadda, yadda…
In the end, however, Obama’s Justice Department determined Tsarnaev would be charged as a citizen in the civilian criminal justice system. As White House spokesman Jay Carney explained, there was no legal way a US citizen could be charged for a domestic act of violence and prosecuted as an enemy combatant in any case. Carney had said, “We will prosecute this terrorist through our civilian system of justice. Under US law, United States citizens cannot be tried in military commissions. It is important to remember since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists.”
Once apprehended, the younger Tsarnaev was admitted to the hospital in serious condition, intubated and with a major neck wound and thus unable to speak. With these circumstances in hand, the next potential legal snarl was the circumstances of how he would be charged. Would he be “Mirandised” – that is, advised of his right to an attorney, that he didn’t have to say anything until he had that attorney present when he was interrogated, and that a court appointed attorney could be assigned to him if he could not afford his own counsel, as viewers of Law and Order know so well? Or, would the authorities seek to interrogate him under the “public security” exemption to Miranda rules in US law?
Once again, Republican politicians – and an interesting collection of international security and anti-terror gurus – encouraged the use of this second club as yet another way of portraying the Obama administration as weak on terror, weak on law and order, and weak on criminal justice generally. Perhaps this was a tit-for-tat response to the Democrats’ generally successful use of the death of Osama bin Laden by US Special Forces in the November 2012 election as a way of demonstrating the Obama administration’s resoluteness against international terrorism.
Regardless, as things turned out, Tsarnaev did get his Miranda rights read to him in an unusual court session right at the side of his hospital bed. In attendance were a judge and several court-appointed public defender lawyers, along with miscellaneous court officials to record the proceedings. That little bit of business settled, the police began to interrogate a still-voiceless Tsarnaev, with the accused apparently writing down answers to the questions of investigators about his motives and connections to any terror networks.
As the AP reported the scene, “Dzhokhar Tsarnaev’s answers led them [police investigators] to believe he and his brother were motivated by a radical brand of Islam without major terror connections, said US officials, who spoke on condition of anonymity because they were not authorised to discuss the investigation publicly.” But the written communication precluded the back-and-forth exchanges that are often crucial to establishing key facts and the larger meaning of those facts. Officials have also added they were still trying to verify whatever it was that Tsarnaev had told them and they were now poring over his telephone records and online communications.
In some ways, of course, the Miranda question had already become a bit of a red herring, given the mountain of evidence that has already been accumulated since the bombings took place. As an American attorney friend familiar with both domestic civil rights and international human rights law explained to this author, “Honestly, the main issue from a civil liberties point of view has been resolved – he’s been charged in a federal court. They aren’t going to declare him an ‘enemy combatant’ and fly him to Guantanamo. That was the thing that worried me.”
This lawyer went on to explain, “The Miranda issue isn’t so important. Most criminal cases in federal court don’t use testimony from the defendants anyway, because no one would be dumb enough to talk to the FBI. All the Miranda warning does is allow the government to use in court any statements a defendant makes after he gets the warning. If the government doesn’t intend to use a confession, it can interrogate a defendant sans-warning for as long as it wants. (There is also a narrow ‘public safety’ exception to the Miranda rule that allows some statements to be used, but that’s an exception in emergency situations.) My guess is that the US government has a slam-dunk case against Tsarnaev already and would rather gather intelligence than fish for a confession it doesn’t need.”
But then there has also already been the troubling nature of the charges. As reported in the media, this will include that enormously loaded phrase, the use of “weapons of mass destruction”. Following the 2003 invasion of Iraq during George W Bush’s administration, WMD became the byword for deceptive argument for an invasion of a foreign land. And appending it to this newest event seems certain to give life to a whole new generation of conspiracy theorists (Who really taught the Tsarnaev brothers to make their pressure- cooker bombs? Who really controlled them as they went about their killing spree? Who was really behind the people who managed them?). Others will find the very description of this charge risible, given its flagrant reach back to Bush-era duplicities and much worse.
Moreover, the Boston Bomber has also become something of Exhibit A in the contentious debate in the US over immigration reform. That has become an issue that bedevils both Republicans and Democrats. On the one hand, Republicans – with their deficit among Hispanic voters continuing to climb – remain tantalised by the possibility of attracting a whole new population cohort as voters whose social attitudes are seen as congruent with more general Republican family values pitches in elections.
They are also attuned to the fact a new generation of conservative Republican politicians like Florida Senator Marco Rubio and the grandstanding, first-term Texas Senator Ted Cruz might well be able to make a connection with such new voters so that Republicans could secure virtually unshakable electoral majorities in key states like Florida and Colorado with that torrent of new Hispanic voters. On the other hand, if such new voters imitated the voting patterns of current Hispanic (and largely Democratic) voters, the wave of newly enfranchised Hispanic voters might be a death knell to Republican presidential hopes for an entire generation.
Or, as the Politico website described the challenge for Republicans, “The immigration proposal… would transform the nation’s political landscape for a generation or more – pumping as many as 11 million new Hispanic voters into the electorate a decade from now in ways that, if current trends hold, would produce an electoral bonanza for Democrats and cripple Republican prospects in many states they now win easily. Beneath the philosophical debates about amnesty and border security, there are brass-tacks partisan calculations driving the thinking of lawmakers in both parties over comprehensive immigration reform, which in its current form offers a pathway to citizenship – and full voting rights – for a group of undocumented residents that roughly equals the population of Ohio, the nation’s seventh-largest state.”
Politico’s analysis went on to say, drawing from US Census data and calculations by the Pew Research Center, that “If these people had been on the voting rolls in 2012 and voted along the same lines as other Hispanic voters did last fall, President Barack Obama’s relatively narrow victory last fall would have been considerably wider… Key swing states – [including] Florida, Colorado and Nevada – would have been comfortably in his column… Republican Mitt Romney, by contrast, would have lost the national popular vote by seven percentage points, 53% to 46%, instead of the four-point margin he lost by in 2012, and would have struggled even to stay competitive in GOP strongholds like Texas, which he won with 57 % of the vote.” But then there is always that temptation that the population of such voters could be wooed by the likes of sharp Republican politicians Cruz and Rubio – with their strongly appealing personal narratives and obvious Spanish surnames.
As a result, Republicans are transfixed – they are caught between searching for that once-in-a-generation opportunity to do a political game changer and simultaneously find a way to use Tsarnaev’s status as an American who was a refugee of Chechen origin as a club on Obama’s party’s support for immigration reform. In this latter case they are arguing immigration reform could well open the floodgates for still more of those nefarious bomb throwing, radical Islamic, swarthy terrorists who would want to sneak their way into America to do their evil best. This makes immigration reform a kind of a treacherous conflict between the competing narratives of an anarchist like the early 20th– century Emma Goldman (a naturalised American citizen who was ultimately forcibly expatriated during the red scares of the early 20th century) and those “huddled masses yearning to breathe”, so desperate to make a new life in the New World and become model Republicans.
Regardless of any or all of these political battles, it is certain that Tsarnaev’s upcoming trial and related legal circumstances will transfix a nation – and a world – focusing unrelenting attention on how young men who were popular high school athletes then became increasingly alienated bombers of an iconic international sports event. The reputations and respective strategies of lawyers for both the defence and the prosecution will become the staples of conversations all around the world – as will any rulings by the trial judge and the ultimate decision of a jury – and all of these will be reviewed obsessively in newspapers, on international all-news television, on blogs, in the social media and in professional circles. Ad nauseum.
Finally, of course, the place of such a trial in American life and jurisprudence will be the subject of discussion and analysis for years and years to come – regardless of whether a jury ultimately finds Tsarnaev guilty as charged, or innocent by virtue of some skillful pleading by his defence team. OJ Simpson’s marathon trial (let alone Oscar Pistorius’s pale competition) will have nothing on Tsarnaev’s lengthy legal journey. DM
● Immigration Reform Could Upend Electoral College at Politico.com
● More details sought on mute Boston bomb suspect at the AP
● An update for Miranda rights, a commentary by attorney Charles Lane in the Washington Post
● Charging the Boston Marathon suspect, an editorial in the Washington Post
● Terror takes a front seat at the Politico website
● Boston echoes in Senate immigration hearing at the Politico website
● The Post’s View – Lawmakers stoking fear of immigrants, an editorial commentary at the Washington Post
● NBC: Boston Bombing Suspect Says Brothers Weren’t In Touch With Overseas Terrorist Groups at the Huffington Post
● What’s the Difference Between McVeigh and Tsarnaev? At the New York Times
● Bomb Suspect Is Charged and Could Face the Death Penalty at the New York Times
● Debate Over Delaying of Miranda Warning at the New York Times
● G.O.P. Lawmakers Push to Have Boston Suspect Questioned as Enemy Combatant at the New York Times
● How to Handle a Terrorism Case, an editorial from the New York Times
● CIA, FBI, military interrogators ready to question Boston bombing suspect at the Washington Post
● Questioning of bombing suspect reportedly begins at the Politico website
● Political Debate Over Boston Bombings Races Ahead Of Investigation at Time
● What Happened to the Miranda Warning in Boston? At the New Yorker
Photo: Dzhokhar Tsarnaev (Reuters)
"A long habit of not thinking a thing wrong gives it a superficial appearance of being right and raises at first a formidable outcry in defence of custom. But the tumult soon subsides. Time makes more converts than reason." ~ Thomas Paine