Tsarnaev Without Tears: The Legal Way Forward

In a domestic terrorism case with an international flavor, the Boston Marathon suspect already has been given more rights than Jose Padilla was 10 years ago.
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A reveler shakes the hand of a police officer as a crowd made its way toward Boston Common after the final suspect in the Boston Marathon bombing was arrested, Friday, April 19. (AP/Julio Cortez)

It's hard to write more urgently, or more eloquently, than Emily Bazelon has written 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 the Lawfare blog thought had gone too far.

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 words reportedly 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?

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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