Alan M. Dershowitz's Perspective:
A moment of silence is observed in downtown Boston on Monday to mark last week's bombing attacks. (Getty Images)
Acts of terrorism directed against American civilians always test our commitments to constitutional principles. Politicians reflect the feelings of many people when they demand that we circumvent basic constitutional rights in an understandable effort to prevent and prosecute acts of terrorism.
As soon as the alleged Boston Marathon bomber was apprehended, some politicians demanded that he be treated as an enemy combatant, despite the fact that he was an American citizen accused of committing a grievous crime in an American city.
The Justice Department insisted that he be questioned without being given Miranda Warnings, because there was an ongoing public safety emergency. This despite the fact that the Boston Police insisted there was no ongoing emergency and that no one was at risk from the Marathon bombers.
There were also those, as there always is, who insist that we need not break or bend constitutional rights in order to bring terrorists to justice. Our constitution, which is not a suicide pact, has long proved itself to be sufficiently malleable to deal with crisis ranging from war to terrorism to civil insurrection.
To paraphrase Thomas Paine: These are the times that test our commitment to our basic constitutional values. We can pass this test.
Dzhokhar Tsarnaev is an American citizen. Though naturalized, he now has the same rights as those of us who were born in the United States (except that he can’t run for president.) We don’t know precisely what his motive was, or even whether he had a clearly defined purpose behind causing so much bloodshed.
We don’t know whether his brother was trained by foreign terrorists or whether he was merely inspired by Jihadist rhetoric. We don’t know very much about the influence the older brother had on the younger brother. And almost nobody could understand what would turn a young man with a good school record into a mass murderer.
It is important to remember that criminal trials are not historical research projects. Nor are they psychological inquiries. They require admissible proof beyond a reasonable doubt of specific crimes as defined by preexisting statutes.
The governing rule is that it is better for 10 guilty to go free than for even one innocent to be wrongly convicted. This salutary principle is applied equally to terrorists as to other criminals.
It is unlikely in this case that there will be much doubt about whether the defendant planted one of the bombs, since he was apparently captured on videotape committing that crime.
If there is a trial, rather than a negotiated plea, the defense is more likely to focus on Tsarnaev’s intentions at the time of the crime.
The Federal Terrorism Statute sets out a list of intentions that qualify as terrorism, and unless the government can prove at least one of those intentions beyond a reasonable doubt, the death penalty would be off the table.
This is because the State of Massachusetts has abolished the death penalty, but the federal government maintains it for terrorist murders.
The assassination of the MIT officer probably does not qualify as an act of terrorism. Accordingly it will be charged as an ordinary crime of murder under state law.
The Justice Department may come to regret not giving Dzhokhar Tsarnaev Miranda warnings because the courts may well exclude statements made by him that prove a terrorist intent.
The government seems to be focusing on the physical facts of the case which will be easy to prove, but in order to get the death penalty, prosecutors may need to use statements elicited from the defendant without Miranda Warnings and at a time when his medical condition may render him incompetent.
All in all it would be far better if government officials followed the letter of the law and the spirit of the constitution. Tsarnaev should immediately be provided a lawyer who can interview his client in private and recommend a strategy.
This strategy may well include cooperation in exchange for his life. This would be the best possible resolution, since it would provide intelligence agencies with needed information, while denying the defendant the martyrdom that might make him an inspiration to other terrorists.
Our Constitution is not broken. Let’s not try to fix it in a manner that we will come to regret in generations to come.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He is a graduate of Brooklyn College and Yale Law School. Read more reports from Alan M. Dershowitz — Click Here Now.
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