At PJ Media, where they’re kind enough to publish me from time to time, Bridget Johnson has a brief piece on two closely related controversies regarding the surviving Boston terrorist bomber.  These are not, by any means, the only issues, and I’ll be writing more about them later this week and in the near future, but for now, should Dzhokhar Tsarnaev be treated as an enemy combatant or a common criminal suspect, albeit a mass murderer?

As Johnson notes, several senators are posturing, although apparently on the side of the angels: 

Shortly after Tsarnaev’s Friday night capture in Watertown, Mass., Sens. Lindsey Graham (R-S.C.), John McCain (R-Ariz.) and Kelly Ayotte (R-N.H.) and Rep. Peter King (R-N.Y.) released a joint statement applauding the fact that the suspect had not been read his Miranda rights as ‘sound and in our national security interests.’

‘We have concerns that limiting this investigation to 48 hours and exclusively relying on the public safety exception to Miranda, could very well be a national security mistake.  It could severely limit our ability to gather critical information about future attacks from this suspect,’ the lawmakers said. ‘We should be focused on gathering intelligence from this suspect right now that can help our nation understand how this attack occurred and what may follow in the future.  That should be our focus, not a future domestic criminal trial that may take years to complete.’

‘The public safety exception is a domestic criminal law doctrine that allows questioning of a criminal suspect without Miranda warnings for a limited time and purpose,’ they added. ‘We hope the Obama Administration will consider the enemy combatant option because it is allowed by national security statutes and U.S. Supreme Court decisions.

The usual Democrat congressional suspects–of course–are opposed, and want Tsarvaev treated as a criminal:

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) countered he’s’“not aware of any legal basis at this point for such a designation” of enemy combatant status in this case.

‘I am not aware of any evidence so far that the Boston suspect is part of any organized group, let alone al Qaeda, the Taliban, or one of their affiliates — the only organizations whose members are subject to detention under the Authorization for Use of Military Force, as it has been consistently interpreted by all three branches of our government. In the absence of such evidence I know of no legal basis for his detention as an enemy combatant,’ Levin continued. ‘To hold the suspect as an enemy combatant under these circumstances would be contrary to our laws and may even jeopardize our efforts to prosecute him for his crimes.

The Miranda decision (Miranda v, Arizona, 1966) is of interest here, if only because it is almost entirely misunderstood.  Hollywood has not been helpful in this regard, giving the very strong impression that when a criminal suspect has been arrested, or if the police so much as speak with them, they must be read their “rights.”  Fortunately, this is not the case.

Miranda applies only in cases of “custodial interrogation.”  In other words, if someone is under arrest (in custody) and the police are asking them questions aimed at gathering evidence to use against them in the prosecution of a crime, Miranda applies.  But even here, there are caveats.  Even if the police never say “you’re under arrest,” a citizen may actually be under arrest if a reasonable person in the same situation would not have felt they were free to go.  However, there are circumstances where the police can actually handcuff someone and put them in the back of a police car for a reasonable period of time–say 15 minutes–and then release them, and they would not have been under arrest.  Sufficiently confused?

And even in cases of custodial interrogation, if the police do not “mirandize” and the suspect makes incriminating statements, all that will happen is the courts will probably prevent the prosecution from using that statement in court.  If there is other evidence, the bad guy may still be convicted.  All other evidence, appropriately gathered, will still be admissible.  So Miranda is not a magic, get out of jail free, card to be played if the police don’t read the contents of a little card to everyone they meet.  It’s a limited Fifth Amendment protection.

In the current case, even if Tsarnaev never speaks to the police–and that’s possible–there appears to be more than sufficient evidence to convict him of myriad crimes.

There is also a “public safety” exception to Miranda widely recognized by the courts.  A classic example might be a murderer who has set a bomb.  The police have a limited time to find and defuse that bomb before others are killed.  In such a case, the courts will generally allow interrogation without Miranda, however, the suspect can still decline to answer.  This exception is generally recognized as being very limited, applicable only for short times, with perhaps two days as more or less an absolute outside limit.  However, such matters are decided on a case-by- case basis; there are no hard and fast time limits.

A bizarrely ironic twist in the current case is that Tsarnaev received a serious wound to his throat during his capture and apparently can’t speak.  Some reports suggest he may never speak again.  There are, however, other means of communication.

And now we come to the current dilemma.  President Obama, Attorney General Holder and Mr. Obama’s sycophants are infamously opposed to treating enemy combatants as enemy combatants.  This is hardly surprising for people who can’t bring themselves to call the Fort Hood attack an act of terror, preferring instead “workplace violence.”

This is arguably a major factor behind Mr. Obama’s use of drones.  One might think this is evidence of a manly desire to obliterate terrorists, however, it is much more likely to be a means of avoiding putting more people in Gitmo and potentially discovering inconvenient and embarrassing intelligence that might tend to demonstrate that Mr. Obama’s policies are less than–ahem–effective.  Terrorists vaporized by Hellfire missiles are points on the political scoreboard, not intelligence producing embarrassments.

If Mr. Obama could close Gitmo, he surely would, and it remains open primarily because the home nations of the misunderstood participants in “overseas contingency operations” housed there are substantially smarter and more realistic that Mr. Obama and absolutely won’t take them back.  Mr. Obama’s attempt to turn an empty Illinois prison into a domestic terrorist Club Fed has been blocked by Congressmen smart enough to understand that people sworn to murder Americans in the most brutal and bloody manner possible tend not to make good neighbors and tend to really put a dent in the reelection prospects of politicians.

Poor Mr. Obama.  Go with his most fervent Leftist beliefs and treat Tsarnaev as a common criminal, with a show trial in New York City (his favorite spot for such matters), affording him all of the protections of the Constitution, or behave like an American president protecting a nation embroiled in an ongoing and deadly global war, and treat him as an enemy combatant?  Some might argue this is a distinction without a difference as Mr. Obama hasn’t tried any of the terrorists at Gitmo since taking office, actually blocking their military tribunals and starting over without actually doing anything.

The advantages, if Mr. Obama was willing to actually treat Tsarnaev as an enemy combatant, are potentially substantial.  Miranda and all related protections simply wouldn’t apply.  As an enemy at war with America, Tsarnaev would have no protections under our Constitution, and none under international conventions, as he is not a member of an armed, uniformed force–a lawful combatant.  It is only they, under the Geneva Conventions, that have any rights under international treaties.  Terrorists, those who wear no uniforms, serve no specific nation, and specifically target civilians to the virtual exclusion of military targets, may–if captured by nations possessed of an enlightened consciousness–be shot then and there.  Tsarnaev can–theoretically–be kept as long as hostilities continue, interrogated to the limits of the law, and prosecuted in the military system at our leisure when his intelligence value is exhausted.

And this is where things also get interesting.  We have in our hands a man who, if some news stories turn out to be true, may be a part of a much larger terrorist sleeper cell.  This means he may not only have substantial additional information about other plots, he can probably provide intelligence about people who do have such information, people who are probably already doing everything they can to flee, destroy evidence, and postpone or change deadly plots.  Remember that Mr. Obama has all but outlawed effective interrogation of terrorists.  Waterboarding?  That’s right out despite unquestionably saving countless lives.  And those very few that were waterboarded?  Quite alive and well and dried off long ago, thank you.

So what do we do with Mr. Tsarnaev, Muslim terrorist murderer of Americans?  And considering Mr. Obama’s absolutely fecklessness, what difference would any potential treatment through our courts or our Obama-crippled military justice system make?  One thing seems certain: we could not possibly have a worse president in the face of current threats.

More on this soon, including a definitive, rational answer to one pressing question: Is Barack Obama Muslim?

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