Finding justice after the Boston bombings

The charging of Dzhokhar Tsarnaev 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.

They wanted him 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. They want to know 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 Tsarnaev’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 Tsarnaev had not been charged when he was pulled out from the boat, bloody and barely clinging to life, where he hid during the massive manhunt which shut down one of America’s biggest cities.

At the time that appeared to be a tactical decision.

But it may have been simply been because the accused was so badly injured that he was unable to respond to the most basic question after being given his Miranda Rights as they are known: “Do you understand?”

Federal charges

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 that 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 that Tsarnaev 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 19-year-old 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.

Death penalty

It has been suggested that 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 Tsarnaev’s capture, told one of my colleagues that she was furious at anyone concerned for the suspect’s rights, insisting that he had given then up “when he planted the bomb”. 

“What about the dead eight year old’s rights and what was lost?”, she said.

The authorities may already have a strong case against Tsarnaev. 

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 Tsarnaev brothers admitted 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 cas comes to court. 

Defence attorneys may suggest to move the trial away from from Boston because it would be difficult to get an impartial jury in the city.

Given how this has hit America – that may be difficult anywhere.