Tsarnaev Without Tears: The Legal Way Forward

It's hard to write more urgently, or more eloquently, than Emily Bazelon haswritten at Slate about the dubious ramifications of the decision late Friday to interrogate the Boston Marathon suspect Dzhokhar Tsarnaev without first informing him of his rights under Miranda v. Arizona. And my colleague David Graham has rightly focused upon Sen. Lindsey Graham's (R-S.C.) unhinged response -- military detention for a U.S. citizen apprehended on U.S soil accused of committing domestic crimes-- which even the earnest folks at theLawfare blog thought had gone too far.

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I write separately here to make a few additional points on the legal way forward here as we embark upon the latest case of the century.

What happened this week in Boston were domestic crimes, pure and simple. They were crimes that our civilian courts have processed for centuries: murder, attempted murder, conspiracy to commit murder, use of a weapon of mass destruction (a bomb). Engaging in an act of "terrorism" which is defined in basic terms, under federal law, as "an act that is dangerous to human life or potentially destructive of critical infrastructure or key resources" and "is a violation of the criminal laws of the United States" and "appears to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of government by mass destruction, assassination, or kidnapping."

There seems to be enormous pressure, in and out of government, to treat this suspect like an international terrorist, whether he is one or not. Federal officials want to do so because it's the post 9/11 narrative for which they have planned. Listening to the breathless media coverage Friday, for the hours upon hours where nothing was happening, one could almost sense from the Beltway consultants and analysts as well a collective willing of this case to morph into an Al Qaeda one. What was the basis for the speculation? A few videos on a website. A visit to Chechnya. Yet when the FBI interviewed the older brother in 2011, reported CBS News' Bob Orr, they found no incriminating information.

It's still early, but I have yet to read anything from anyone who knows anything about this case that explains what exactly is so illogical about the wordsreportedly uttered Friday by Chechnya leader Ramzan Kadyrov, who said of the Tsarnaevs: "They grew up in the USA, their views and convictions were formed there. The roots should be looked for in America." I realize this isn't what America wants to hear this morning. And I realize Kadyrov is highly motivated to deflect blame away from his country. But what do we know about these two brothers today that makes it wrong?

Tsarnaev was apprehended 18 years to the day that Timothy McVeigh was arrested as he was speeding away from the Alfred P. Murrah Federal Building in Oklahoma City. Perhaps Attorney General Eric Holder will correct me if I am wrong-- he should know, he was Deputy Attorney General in 1997 when the bombing trials were held in Denver-- but there was no "public safety exception" delay inMirandizing McVeigh or Terry Nichols. This is how far the constitutional requirement has eroded in less than a generation without a single United States Supreme Court decision to say so. I don't doubt that this Court would today sanction such a broader interpretation of the rule. But so far it hasn't.

Even as Washington seeks to fit this story into a larger narrative, the Obama Administration has recognized that this is more like a blended case-- domestic terrorism with an international flavor, you could say. So, "public safety exception" or not, Tsarnaev can thank Jose Padilla for whatever constitutional rights he will receive in the next few days and weeks. Padilla, too, was a U.S. citizen, apprehended on American soil, accused of a form of terrorism. But Padilla, whose alleged plot never came close to fruition, was thrown into military detention, for years, and deprived of basic due process rights until the federal courts belatedly forced Bush officials to turn him over to civilian custody. The Tsarnaev case starts where Padilla case ended. And Tsarnaev's U.S citizenship makes a big difference -- politically and legally.

All that said, this is not likely a case where the defendant's confession is going to be dispositive. The feds won't likely need to introduce at Tsarnaev's trial(s) any "confession" or other incriminating statements he may theoretically make before he is informed of his right to remain silent and of his right to a lawyer. Just think of the eyewitnesses, and the video surveillance, both from Monday and from late Thursday night, which would likely be used against him in a court of law. Just think of the physical evidence that links him to his alleged crimes. There is, as Bazelon says, good reason to be concerned about the Miranda"exception" swallowing the rule. But there is little reason to think it will unduly prejudice Tsarnaev in this case.

The good news is that there is a decent chance that the coming case will be presided over by one of the nation's finest trial judges. U.S. District Judge William Young is a likely candidate to get the assignment because of his past experience with terror trials -- he eloquently sentenced Richard Reid, the "shoebomber" to life in prison a decade ago-- and for his penchant for handling other complex, high-profile cases. Judge Young, an appointee of Ronald Reagan who has bravely criticized executive branch overreach when he's seen it, is not going to let the Justice Department push him, or the defendant, around.