The charging of Dzhokar Tsamaev with using a weapon of mass destruction brings an end to an intense legal debate here in the US on whether he should be accused of a crime or an act of war.
Many Republicans, former presidential candidate John McCain among them, wanted to see the 19-year-old held indefinitely, questioned without any of the usual warnings that he has the right to remain silent and the right to legal representation. They would like to see him interrogated to gain intelligence about the operation in Boston including if anyone else knew of his alleged plans to bomb the race, if anyone funded his operation and perhaps the most crucial question of all if someone had directed the operation.
Yet the FBI and the Boston police essentially ruled that out when they announced after Tsamaev’s capture on Friday night that the city’s nightmare was over and the “terror” had ended.
The US attorney handling the investigation said on Friday that Tsmaev had not been charged when he was pulled bloody and barely clinging to life from the boat where he hid during the massive manhunt which shut down one of the country’s biggest cities. At the time that appeared to be a tactical decision. Yet it may have been simply that the accused was so badly injured he was unable to respond to the most basic question after being given his Miranda Rights as they are known: “Do you understand?’.
Alan Dershowitz, a Harvard law professor and well-known defence lawyer thought the idea of treating the Boston Marathon suspect was a non-starter.
“This is an American citizen being tried for a crime that occurred domestically, and there is simply no way to treat him like an enemy combatant — not even close,” he said.
There is an exceptional provision which allows prosecutors not to read the rights if there is an ongoing and immediate danger to the public.
Given the statements from the police and the FBI, civil liberties campaigners were concerned the rules were being twisted. In a statement issued on Saturday, the American Civil Liberties Union Executive Director, Anthony Romero said: “Every criminal defendant has the right to be brought in front of a judge and to have access to counsel. We must not waver from our tried and true justice system even in the most difficult times.”
It has now been decided Tsamaev will face federal charges. White House spokesman Jay Carney said: “He will not be treated as an enemy combatant. We will prosecute this terrorist through our civilian system of justice.”
It is possible that prosecutors will request the death penalty when this case gets to court and if the suspect is found guilty. That decision will be made by Attorney-General Eric Holder, although there is a protocol to be followed which will analyse all aspects of the crime before a request for a sentence can be made.
It’s been suggested Democratic administrations are less likely to request the death penalty, but they did exactly that in the case of the Oklahoma City bomber Timothy McVeigh. One issue may be that Massachusetts does not have the death penalty on its statute books. That could allow a defence attorney to try to have the case heard in state court. For some, the legal and constitutional debate is nonsense.
One woman who lives in Watertown, the site of Tsamaev’s capture, told one of my colleagues she was furious at anyone concerned for the suspect’s rights insisting that he had given them up ‘when he planted the bomb. What about the dead eight-year-old’s rights and what was lost?’
The authorities may already have a strong case against Tsamaev. They have videos of him and his brother Tamerlan at the scene of last Monday’s double bombing carrying backpacks like those forensic teams believe carried the explosives. They have an eye witness, a man whose legs were blown off, saying he saw one of the brothers place a bomb. And they say the Tsamaevs admitted to the bombings and killing a police officer to a man whose car they hijacked at gunpoint.
It could be more than a year before any case comes to court. Defence attorneys may suggest the trial be moved from Boston because it would be difficult to get an impartial jury. Given how this has hit America – that may be difficult anywhere.