In the 1995 bombing of the Oklahoma City Murrah Federal Building, Timothy James McVeigh killed 168 people. He was arrested, read his Miranda rights and convicted by a fair and impartial jury of his peers. McVeigh was a citizen of the United States of America. McVeigh was a white Roman Catholic.
In his bombing of the Boston Marathon and subsequent flee from police, Dzhokhar Tsarnaev is suspected of killing five people. He was arrested and not immediately read his Miranda rights so that he could be questioned under the public safety exception to determine if the public was in further danger, according to the New York Times. In a press release, four Republican senators suggested he be held as an enemy combatant, the same designation given to non-citizens captured on foreign battlefields and held at Guantanamo Bay. Tsarnaev is not white. He is a Chechen Muslim.
An individual suspected of a crime is read Miranda rights to protect him or herself from making self-incriminating statements. The public safety exception to the Miranda rule, as defined by the Supreme Court, allows officials to question a suspect (without Mirandizing him) about imminent threats to public safety, such as the location of a gun.
In certain cases, the public safety exception would make sense. This is not one of those cases. According to Harvard Law professor Alan Dershowitz in an interview with Newsmax, the grounds for questioning Tsarnaev under the public safety exception are dubious at best.
“In this case the two defendants have been apprehended. One is dead. The other is under surveillance. They have access to his home. They have access to all of the explosives,” Dershowitz said. “The police chief has said there’s no continuing danger. What they’re seeking is information — intelligence information — and the public safety exception simply doesn’t apply to that.”
But other tactics go even further. In an interview with the Washington Post, South Carolina Sen. Lindsey Graham, said he wants Tsarnaev to be labeled as an enemy combatant and recommended he be interrogated for 30 days without the constitutional protections afforded to criminal defendants.
Not only is such a designation unconstitutional, it is a designation unfounded in fact and one that suggests a deeper and more sinister problem in America.
The designation of the label “enemy combatant” is given to individuals arrested on the battlefield who are members of an organization known to oppose the United States. Yet, CNN reports that the brothers supposedly acted alone, without the aid of an organized extremist group.
The constitutional grounds for such a designation are also unfounded. In Hambdi v. Rumsfeld, Justice Sandra Day O’Connor, writing for the Supreme Court, said, “We agree that indefinite detention for the purpose of interrogation is not authorized.”
Though the public safety exception, created by the Supreme Court, does allow for a brief interrogation to determine future threats, designating Tsarnaev as an “enemy combatant” would cross a constitutional line.
More troubling is the sudden designation of the bombing as an act of terrorism. Such designation begs the question — does it take a suspect of a crime to be Muslim and nonwhite before the word “terrorism” gets tossed around? Were murderers Adam Lanza or James Holmes or Jared Loughner labeled terrorists, even though they killed far more than people than the Tsarnaev brothers did? No.
Did Graham, who said in an interview with the Post that the Boston bombing “is Exhibit A of why the homeland is the battlefield,” say the same about Sandy Hook Elementary School, the movie theater in Aurora or the Safeway in Tucson? No.
In fact, there are lots of problems with the rhetoric surrounding the bombing in Boston. In the week before the Boston crisis, the Republican Party came together to defeat a plethora of proposals that would, in its eyes, harm the Second Amendment.
The assault weapons ban, the universal background check rule and the high-capacity magazine ban were all defeated because of their potential to harm the Second Amendment. To the GOP, the slightest risk that a law runs afoul of the Constitution is enough to merit its rejection.
But the Constitution does not just apply to gun owners — it applies to everyone. If due process is effaced in favor of an “enemy combatant” label for an individual with no known ties to an enemy of the United States, there is nothing to shield the innocent from the overreaching of bureaucrats. Tsarnaev is innocent until proven guilty, not through trial by media, but through a civilian trial with a jury of his peers.
If the war on acts of mass violence cannot be won without destroying the Constitution, than we have already lost.
Nathaniel Haas is a freshman majoring in political science and economics.