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 A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.