Thursday, April 25, 2013


The fact that the surviving "suspect" in the Boston Marathon attack is an American citizen has resulted in various claims that his rights to Due Process have been, or are about to be, denied.

I am not a fan of political labels. They are painted with too broad a brush for my tastes, and are inconsistent with opinions being tailored to specific facts. It is not a stretch of logic to declare that these complaints have, in the main, come from liberals and intellectuals. The latter term often requires the preface "self professed."

These individuals are well-meaning to the core and are correctly concerned with, and dedicated to , strict adherence to constitutional protections of fairness. But I suggest that there are always exceptions, grounded in appropriateness, which mandate a close examination of the elasticity of a doctrine's applicability.

We are at war with an enemy which has chosen terror as its instrument. No battlefield victories. No hand-to-hand combat. We are instead faced with the ominous specter of the stealth of suicide.

This requires the ultra-complex task of evolving the most effective reactive response.

I am a practical man. When confronted with a theoretical assertion, I say, "give me an example."
Accordingly, here, as I see it, is what we are up against.

Hamas, designated as a terrorist organization, recently broadcast a children's television program in which kids, who appeared to be no older than 10 years, extolled the virtue of suicide attacks and expressed their desire to blow themselves up in order to defeat their foes. The children sang in chorus: "Jihad bestows pride and glory upon you when you become a martyrdom-seeker."
One youngster was seen saying, "The mothers send their sons to victory or to paradise."

It must be realized that extremist Muslims, the Jihadi, stand ready to enthusiastically sacrifice their lives by blowing themselves up for the sole purpose of killing as many Americans as possible, for we are one of their enemies.

Not to ramble, I analyze the situation at hand.

Dzhokhar Tsarnaev, the "alleged" suspect, was captured and immediately hospitalized. The U.S. Supreme Court has held that in such a situation, the advising of Miranda rights may be delayed, for as long as 48 hours, so as to allow federal authorities the opportunity to question the individual about an existing imminent trhreat to public safety. They are not to expand this interrogation to the merits of guilt or innocence without Miranda advice being given. The FBI, properly utilizing this exception, had been questioning Tsarnaev, gathering valuable intelligence vital to the prevention of future suicide attacks, when, to their shock and dismay, a federal magistrate "waltzed" into the hospital room with a public defender, for purposes of arraignment. The attorney promptly advised Tsarnaev of his Miranda rights whereupon he stopped answering questions. The public safety interrogation had lasted only 16 hours before it was prematurely terminated. There was much more to learn and as long as Tsarnaev's answers were voluntary, the questioning should have been allowed to continue.

Let me bite the bullet. The "imminent public safety" exemption should allow interrogation on any aspecct of intelligence that could be obtained from the suspect. Time limits be damned. Even should this information be rulled inadmissable at trial, it would surely be a valuable tool for counter-terrorist operations. Besides, there is a plethora of independent evidence demonstrating Tsarnaev's guilt.

Which side should blink first? The vital need for intelligence or the tecnichal adherence to general constitutional principles?

If a Jihadist was captured in Afganistan, and it was discerned that he was an American citizen dedicated to destroying his country, should he immediately be read his rights and affordered counsel? Laughable, no? And yet, that is what is at play here.

This is a different type of war we're fighting. No other enemy has chosen suicide as its exclusive weapon of choice.

The enemy's means of attack is different. So should be our code of conduct.

No broad strokes. Take it on a case-by-case basis. Anything Tsarnaev had to say would have been solidly couched in public safety considerations. Withholding the advice of Miranda rights was justified under the circumstances and interrogation should not have been curtailed. The Miranda court had not been faced with terrorist activities. The war of the Jihadis is unique in its chosen means of terror. Miranda rules should be modified accordingly. This is a new ball game. A different arena of war. A modification of investigatory tactics is mandated. This will not threaten the constitutional rights of non-terrorist suspects.

Until and unless our Supreme Court declares "enhanced interrogation" (including waterboarding) to be unconstitutional, it should be utilized in our counter-terrorist efforts.

With national security at stake, do what must be done. Respond accordingly to the enemy's means of combat.

Our Founding Fathers, participants in the American Revolution, would not object.

Nor would the victims of 9/11 or the Boston Marathon.

Rules that don't apply can't be broken.