This column by ACRU Senior Legal Analyst Ken Klukowski was published April 19, 2013 on Breitbart.com.
The Obama administration has placed Boston terrorist suspect Dzokhar Tsarnaev in federal custody with plans to give him a civilian criminal trial in U.S. District Court in Massachusetts. That’s what the Constitution requires, though some will undoubtedly question that decision.
According to reports, Tsarnaev became a U.S. citizen in Sept. 2012. He was captured on U.S. soil by federal law enforcement officers (not military). This was not a battlefield setting, and at this point it appears Tsarnaev was not working for a foreign government or terrorist organization with which we are at war.
Tsarnaev is now in federal custody and will be prosecuted in federal court by the U.S. Department of Justice through Massachusetts U.S. Attorney Carmen Ortiz.
If all those facts are correct, then Tsarnaev is entitled to a full-dress criminal prosecution and able to assert all the rights of the Fourth, Fifth, Sixth, and Eighth Amendments in the Bill of Rights of the U.S. Constitution.
There are many rights conferred by those constitutional provisions. In this context, this means that among other rights, he will (1) be presumed innocent, (2) has the right to be indicted before standing trial for any felony, (3) has the right to legal counsel, (4) can demand a jury trial, and (5) can only be convicted if the jury unanimously votes that he is guilty, (6) a verdict they can only reach if every element of the crime is proved beyond a reasonable doubt.
It’s a formidable array of protections that are designed to err on the side of personal liberty, one that would rather set a guilty man free than condemn an innocent man. I have been very critical of the Obama administration’s decision to try terrorists in civilian courts. Everyone at Gitmo, Bagram, accused terrorists like the shoe bomber, the Christmas bomber, and bin Laden’s son should all have been given military trials only. But under the facts discussed above, prosecuting Tsarnaev in the criminal justice system in federal court is correct.
Tsarnaev could possibly be tried as an enemy combatant if it was demonstrated he was a member of or associated with a terrorist group, like Al Qaeda, that we are in an ongoing war with. If he was receiving any direction from abroad and became a domestic agent of a group affiliated with Al Qaeda, the argument could be made that his case becomes a national security and foreign policy matter.
But, as of tonight, it does not appear there is strong argument for that scenario; it looks like Tsarnaev belongs in federal court.
Even with the protections afforded through citizenship, Tsarnaev has a hard enough road ahead of him as it is. The Bill of Rights makes prosecutions difficult, but not impossible. Even in this early stage, investigators appear to be amassing a mountain of evidence against Tsarnaev. The career federal prosecutors at the Justice Department are very good at their jobs and hopefully will develop an airtight case that will secure convictions for capital crimes that carry the death penalty.