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Dzhokhar Tsarnaev had right to remain silent only after he confessed

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TAMPA, April 24, 2013 – Civil libertarians seemed to have cause for relief on Monday as reports were released that Boston Marathon bombing suspect Dzhokhar Tsarnaev had been formally charged with the crime, given a Miranda warning and assigned counsel.

Some prominent officials, including U.S. Senator Lindsey Graham, had called for Tsarnaev to be treated as an enemy combatant. The Obama administration indicated that it would prosecute the U.S. citizen in civilian court, but would invoke the public safety exception to the Fifth Amendment in questioning Tsarnaev before reading him his rights.

It appeared that justice had prevailed. Major news outlets reported that a bedside hearing had taken place, presided over by a judge, with counsel for the defense present. A transcript of the hearing is available online or in pdf above.

The bedrock legal principles that make America the “land of the free” had been preserved. Tsarnaev would be presumed innocent until proven guilty. He would have the benefit of counsel to challenge the government’s case against him, examine the evidence and cross examine any witnesses.

He would not be subject to punishment until he had been proven guilty in an adversarial proceeding, rather than merely accused.

There was only one problem. We now know that Tsarnaev had already confessed to the crime.

So, Tsarnaev had the right to remain silent only after there was no longer any reason to remain silent. That defeats the whole purpose of the Fifth Amendment. One of the reasons it was established was the routine use of torture in obtaining confessions in the Middle Ages.

So, how did federal authorities obtain Tsarnaev’s confession? Was he tortured? All we know is he was alone with federal authorities and helpless in his hospital bed.

It’s not like this is some paranoid inquiry into impossible circumstances. This is a government that has already admitted to employing “enhanced interrogation techniques” many times in the past. It has tortured U.S. citizens. Now, it is finding ways around due process. This is another step in the destruction of American liberty.

This government had already claimed the authority to declare someone an enemy combatant and, based solely on that accusation by the executive branch, to indefinitely detain that person without charges, without access to a lawyer or the opportunity to petition a judge for a writ of habeas corpus. There is no substantive difference between this and being “black bagged” by the KGB in the former Soviet Union.

Now, you don’t even have to be an “enemy combatant.” Even the kangaroo procedure the Obama administration employs to so designate someone is no longer necessary. The precedent is now set that a non-enemy combatant suspect can be treated the same way.

There is no evidence so far that Tsarnaev’s confession was compelled by torture and no reasonable cause to suspect it was. It’s hard to imagine him being waterboarded in his hospital bed with nurses and other patients nearby. On the contrary, he seems to have been treated humanely, perhaps because he was already severely injured when taken into custody.

That doesn’t change the fact that this government claims the authority to do so under an ever-widening set of circumstances. Any suggestion that this may be dangerous is met with the obtuse reply that “terrorists don’t deserve due process.” That begs what should be an obvious question.

If due process is the way we find out that someone is a terrorist, how can we deny a person due process because he’s a terrorist?

It’s not as if no one has ever been wrongly accused of terrorism. As Glenn Greenwald observes,

“As so many cases have proven – from accused (but exonerated) anthrax attacker Stephen Hatfill to accused (but exonerated) Atlanta Olympic bomber Richard Jewell to dozens if not hundreds of Guantanamo detainees accused of being the “worst of the worst” but who were guilty of nothing – people who appear to be guilty based on government accusations and trials-by-media are often completely innocent. Media-presented evidence is no substitute for due process and an adversarial trial.”

The idea that torture and denial of due process are acceptable merely because a suspect is accused of “terrorism” turns the entire foundation of American freedom on its head. If the United States is truly freer than other nations, it is not because of its representative government. It is because of what that representative government is not allowed to do.

Americans once understood that the federal government was not allowed to exercise any power that was not delegated to it in the Constitution. Over time, the government has increasingly behaved as if it may exercise any power not strictly prohibited to it by the Constitution or subsequent amendments.

Now, it claims the authority to exercise even those powers strictly prohibited by the Bill of Rights. Today it does so against Dzhokhar Tsarnaev.

Tomorrow it might be you.

Libertarianism, anyone?

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

How do we know Dzhokhar Tsarnaev is a witch?

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TAMPA, April 22, 2013 – Predictably, neoconservative politicians have already called for Boston Marathon bombing suspect Dzhokhar Tsarnaev to be treated as an enemy combatant, meaning that he would not enjoy the constitutional protections afforded criminal defendants in civilian courts. Pundits and blog commenters have echoed the sentiment that “terrorists don’t deserve due process” or other constitutional protections. According to this argument, they forfeited them when they decided to wage war against Americans.

This begs an obvious question. How do we know Dzhokhar Tsarnaev committed the crime and therefore doesn’t deserve due process, when due process is the means by which we make that determination?

Neoconservative logic isn’t much better than Sir Bedevere’s in the witch scenein Monty Python and the Holy Grail. Sadly, many Americans are acting every bit the mob depicted in that satire.

Read the rest of the article at Liberty Pulse…

The Bill of Rights was written for Dzhokar Tsarnaev

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TAMPA, April 20, 2013 – 19-year-old Boston Marathon bombing suspect Dzhokar Tsarnaev is in custody. Assuming that Tsarnaev is indeed guilty of these crimes, a very real threat to public safety has been taken off the streets. That’s the good news.

The bad news is that the Tsarnaev brothers have taken the last vestiges of a free society in America down with them.

The Bill of Rights was already on life support before this tragedy. Before the dust settled after 9/11, the 4th Amendment had been nullified by the Patriot Act. The 5th and 6th Amendments were similarly abolished with the Military Commission Act of 2006 and the 2012 NDAA resolution, which contained a clause allowing the president to arrest and indefinitely detain American citizens on American soil without due process of law.

Americans had already grown accustomed to having their persons and papers searched at the airport without probable cause and without a warrant supported by oath or affirmation. After a brief, politically-motivated backlash against the Bush Administration, Americans similarly resigned themselves to the government tapping their phones, reading their e-mails and generally spying on them wherever they went. Things were already very, very bad.

They just got a lot worse.

Not only did the militarized domestic law enforcement complex put the City of Boston under martial law, but nobody seems to have found it out of the ordinary, much less outrageous. Yes, a few journalists like libertarian Anthony Gregory raised a finger. But, for the most part, nobody seemed to mind that the entire city was under military siege, complete with paramilitary units in full battle gear, battlefield ordinance and tanks. Tanks!

How did we get here? 238 years ago to the day, the inhabitants of the very same city started a war and seceded from their union over a mere infantry brigade attempting to disarm them. Now they cheer those who violate their rights much worse than the British ever did.

When Lee Harvey Oswald was similarly suspected of killing a police officer after assassinating the President of the United States, Dallas was not put under martial law. No tanks rolled through the streets. Oswald was armed at the time of his arrest and attempted to shoot the arresting officer, whose thumb stopped the hammer of Oswald’s pistol from discharging the weapon at point blank range.

It is noteworthy that the military siege was called off several hours before Tsarnaev was captured. In the end, he was found and taken into custody by the same methods that any other criminal has been for most of U.S. history.

So, there was no cause and effect relationship between the state show of power and the apprehension of the suspect.

Now, the DOJ has announced that Tsarnaev will not be read his Miranda rights, citing the “public danger” exception in the 5th Amendment. But the language in the amendment doesn’t remotely apply to this situation, nor is it even related to the protection against being a witness against oneself. It reads,

“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 offence 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.”

First of all, Tsarnaev is not in the Army, Navy or militia. Even if he were, the language would only have applied if Tsarnaev had been observed with the bomb in his hands just before committing the crime. The exception gives law enforcement the power to arrest him without first getting a Grand Jury indictment under those circumstances. It doesn’t release the government from the prohibition against compelling Tsarnaev to be a witness against himself after his arrest, which is the basis for Miranda.

If Tsarnaev is guilty, then the public danger was over once he was arrested. The government has no authority to waive any of its obligations for due process. He should be read his rights and allowed to remain silent without molestation. He should have an arraignment where he is given the opportunity to hear the charges against him and enter a plea of guilty or not guilty. If he is unable to afford a lawyer, one should be assigned to him at public expense. His guilt should be decided by a jury of his peers, not the government or the media.

The Bill of Rights was written for Dzhokar Tsarnaev. It wasn’t written for those suspected of violating minor violations.

The Boston Marathon bombing was a particularly heinous crime. No one with a pulse could help but feel deeply for the parents of an eight-year-old boy killed by this senseless act or the others killed or permanently maimed. Most red-blooded men would have liked nothing better than to have been the one who found Dzhokar Tsarnaev, praying he’d resist arrest.

Those are perfectly healthy feelings, but the awful power of the state is not supposed to be set loose based upon feelings. It is supposed to be restrained by reason. God help us if we forget.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?