Graham and McCain: Bill of Rights? What Bill of Rights?

Graham and McCain: Bill of Rights? What Bill of Rights? April 21, 2013

Among the predictably ridiculous responses to the pursuit and ultimate arrest of one of the perpetrators of the Boston Marathon bombing was Sen. Lindsay Graham and John McCain saying that Dzhokhar Tsarnaev should not be covered by the Constitution now that he’s been arrested.

Just put out this statement with John McCain about the suspect captured in Boston and whether they should be held as an enemy combatant.

“We truly appreciate the hard work and dedication of our law enforcement and intelligence communities.

“It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorist trying to injure, maim, and kill innocent Americans.

“Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes. We need to know about any possible future attacks which could take additional American lives. The least of our worries is a criminal trial which will likely be held years from now.

“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. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks.

“We remain under threat from radical Islam and we hope the Obama Administration will seriously consider the enemy combatant option.

“We will stand behind the Administration if they decide to hold this suspect as an enemy combatant.”

Yeah, why would we want to enforce the Constitution and respect the rule of law? We should just pick and choose who gets the privilege of due process. Now remember, this guy would undoubtedly profess his undying love of and devotion to the Constitution and his endless belief in the genius of the Founding Fathers — you know, the ones who wrote the 4th and 5th Amendments that guarantee those rights to Tsarnaev (and to all of us too).

And you can bet that this will now be the story in the right wing blogosphere and on Fox News for the next few days, how Obama was undermining our security by trying this guy in civilian court and how he should have been tortured. They will spin lurid tales of how he’s being waited on hand and foot and fed caviar and lobster when he really should be in Gitmo. And they will of course ignore the fact that we have prosecuted hundreds of terrorists over the last 20 years, all of them successfully.

They will also ignore the fact that there is absolutely no legal way to do what they want done. There is no way in hell that any court is going to allow an American citizen who committed a crime on American soil to be declared an “enemy combatant.” Any decision to treat him as such would be overturned immediately by the federal courts and the DOJ surely knows this. The last thing they want is to attempt to do something that cannot be done. Nor is it necessary. The suspect was not read his Miranda rights when he was arrested because the police invoked the public safety exception, which is well established in the law and often used in terrorism cases.

It isn’t even entirely clear that the feds have jurisdiction over this case, as opposed to the Massachusetts state court. The federal terrorism laws have some very specific definitions that may very well not be met in this case; we won’t know for sure until more information is available about their motives and goals. The federal definition of terrorism requires that the violent acts must be done “to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” It isn’t clear yet that this is what happened; this may well be more like Columbine than 9/11.


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