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The Rights of Dzhokhar Tsarnaev

dzhokhar_boat_infraredJust before Dzhokhar Tsarnaev’s capture on Friday night, South Carolina Senator Lindsey Graham suggested that Tsarnaev should be treated as an enemy combatant of the United States, allowing investigators to interrogate him without first Mirandizing him.

Following his apprehension, it was made clear that the FBI intended to do just that, by invoking a little known “public safety” exception clearing them of the legal obligation to read Dzhokhar his rights.

On Saturday, the Guardian’s Glenn Greenwald tackled this story, asking what rights Tsarnaev has as a suspect in a potential terrorist bombing.

He charts the history of the Miranda public safety exception from a 1984 Supreme Court trial through to the Department of Justice’s 2011 expansion of that rule, concluding with an analysis of what it means for ordinary US citizens. In the process, he catches President Obama and other liberal politicians in an embarrassing and troubling allegiance with Senator Graham and even former President George W. Bush:

It is bizarre indeed to watch Democrats act as though Graham’s theories are exotic or repellent. This is, after all, the same faction that insists that Obama has the power to target even US citizens for execution without charges, lawyers, or any due process, on the ground that anyone the president accuses of Terrorism forfeits those rights. The only way one can believe this is by embracing the same theory that Lindsey Graham is espousing: namely, that accused Terrorists are enemy combatants, not criminals, and thus entitled to no due process and other guarantees in the Bill of Rights. Once you adopt this “entire-globe-is-a-battlefield” war paradigm – as supporters of Obama’s assassination powers must do and have explicitly done – then it’s impossible to scorn Graham’s views about what should be done with Tsarnaev. Indeed, one is necessarily endorsing the theory in which Graham’s beliefs are grounded.

Dzhokhar became a naturalized citizen in 2011, but because he is suspected of participating in a terrorist act—something that is by no means proven nor clear—and is thereby considered an enemy combatant, his constitutionally guaranteed right to a fair trial is being denied. As should be plain, and as Greenwald makes very clear, this establishes a precedent for the government to deny those same rights wherever it fears a terrorist threat is present, even if it involves citizens born in this country:

Needless to say, Tsarnaev is probably the single most hated figure in America now. As a result, as Bazelon noted, not many people will care what is done to him, just like few people care what happens to the accused terrorists at Guantanamo, or Bagram, or in Yemen and Pakistan. But that’s always how rights are abridged: by targeting the most marginalized group or most hated individual in the first instance, based on the expectation that nobody will object because of how marginalized or hated they are. Once those rights violations are acquiesced to in the first instance, then they become institutionalized forever, and there is no basis for objecting once they are applied to others, as they inevitably will be…

Figuring out what constitutes terrorism is tricky. It’s therefore equally tricky labeling and distinguishing terrorists from criminals. But since Dzhokhar’s alleged involvement in the Marathon Bombing looks like terrorism, it might as well be. Nevermind that there’s little evidence to distinguish what he allegedly did from what other violent criminals have done, as in Aurora, CO, Sandy Hook, or Columbine.

Some would even like to label Army Pfc. Bradley Manning and Wikileaks as terrorists, and it’s a short jump from there to equating political dissenters with enemy combatants. Go far enough down that road and the denial of Miranda rights begins to look positively Orwellian—just so long as you might be a terrorist, your rights are fragile and can be broken. It’s easy to see how collapsing distinctions between criminals and terrorists could quickly create legal problems for everyone.

With such broad interpretive powers in the DOJ’s hands, it’s hard not to feel a little frightened by the treatment of Dzhokhar Tsarnaev, who is supposed to be innocent until proven guilty. Assuming that he is a terrorist effectively gives our government the right to disregard what he earned when he became a United States citizen. And if his rights go, then so do mine.