The legal process ahead for Dzhokhar Tsarnaev

The legal process ahead for Dzhokhar Tsarnaev
The legal process ahead for Dzhokhar Tsarnaev
Associated Press

There were some preliminary reports last night that Dzhokhar Tsarnaev had been read his Miranda rights, but that turns out not to have been the case – the bombing suspect is in federal custody, but for now, as Rachel explained on the show last night, he has not been made aware of his rights, with officials citing a public-safety exception.

The details of the process obviously matter. There are certainly legitimate questions right now about other possible explosive devices that may pose a threat in the city of Boston, so it stands to reason that law enforcement would seek to get immediate information before Tsarnaev is told he can remain silent. That said, Emily Bazelon also raises sensible concerns about “stretching the law” and misapplying the public-safety exception.

This element of the process, however, is temporary – the exception comes with an expiration date, and will no longer be an option for officials after about 48 hours from the time Tsarnaev was taken into custody. The broader question – I’m reluctant to call it a “debate” since the path seems so obvious – is what happens after that. Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) have some thoughts on the matter.

Two powerful GOP senators are calling on the Obama administration to treat the captured suspect in the Boston Marathon bombings as an “enemy combatant” and deny him counsel even though he is reportedly an American citizen. […]

Regardless his citizenship status, McCain and Graham say Dzhokhar Tsarnaev gave up his rights to a criminal trial when he allegedly participated in the bombings.

“Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel,” McCain and Graham said.

McCain and Graham are playing a dangerous game here. In case anyone’s forgotten, we’re talking about an American citizen, captured on American soil, accused of committing a crime in America. These Republican senators are arguing, in effect, that none of this matters anymore.

The same week in which Senate Republicans insisted that the Second Amendment is sacrosanct, McCain and Graham are arguing that the Fourth Amendment is a nicety that the nation must no longer take seriously.

By all accounts, the Obama administration is prepared to ignore the senators’ suggestion.

Even if authorities determine that the Tsarnaevs received support from an overseas terrorist organization, the Obama administration official said the government will not seek to declare him an enemy combatant and try him before a military commission, as it has done with senior al Qaeda officials captured overseas and imprisoned at the Guantanamo Bay detention camp. Administration officials see that scenario as a non-starter, the official said, particularly given the fact that Dzhokhar Tsarnaev is an American citizen, naturalized last September.

That’s encouraging. Even for those on the right who are indifferent to civil liberties, the fact remains that civilian trials for terrorist suspects have proven to be an effective method of trying, convicting, and sentencing criminals, including accused terrorists. Military commissions, meanwhile, have proven to be an ineffective method.

When it comes to national security, foreign policy, and counter-terrorism, McCain and Graham have a track record of being remarkably wrong with incredible consistency. The more the Obama administration ignores their advice, the better.