Here are some known facts:
The Constitution applies to US Citizens.
The Constitution includes the Bill of Rights.
The Bill of Rights are the first 10 Amendments.
One of those Amendments is the 5th Amendment.
The 5th Amendment provides for Due Process.
Due Process applies to US Citizens.
Now let's define due process. In a nutshell, due process is presenting your case in court fairly.
Brace yourself:
There are two types of due process: substantive and procedural.
Substantive due process: whether the government has an adequate reason for taking away a person’s life, liberty, or property.
Procedural due process: the procedures a government must follow to take away someone’s life, liberty or property.
Yes, we just defined due process but now it gets a teensy bit tricky.
When police take a person into custody and interrogate him (custodial interrogation), that person must be given Miranda warnings regardless of the severity of the crime.
This is where people start citing the "Public Safety Exception". This exception allows police to question a suspect in custody without Miranda warnings about the location of a missing gun or the location of a missing kidnapped victim for the protection of the police or the public. These are immediate questions for a perceived immediate threat.
Does the public safety exception apply here?
There's new evidence emerging that Tsarnaev may have been part of a ring. However, this evidence is emerging over a period of days...days after he was caught. Ideally, the public safety exception should last a short amount of time so that Miranda can swoop in and allow for the person to have due process. But, on the other hand, Tsarnaev is not conscious. So any questions asked cannot be answered. The risks are now all perceived risks that start with "Maybes". Maybe there are more bombs out there. Maybe the one phone call he gets will result in him remotely setting off a bomb. Maybe there is a terrorist ring he is a part of that is ready to strike. All these maybes are just that: maybes. They're not fact, but they are based on fact. A fact that is quickly becoming a historical fact without immediate future danger. I say that the public safety exception does not apply here.
So is he an enemy combatant?
You might think that United States citizens captured in America cannot be designated as enemy combatants. False.
Precedent looks at two cases: Ex parte Quirin and Rumsfeld v Padilla. Quirin involved a bunch of German-Americans (one was a US citizen) landing on Long Island during WWII. They were captured and tried as enemy combatants. José Padilla was a US Citizen captured in Chicago for terrorism related conspiracies back in 2002, but he was not charged at the time. He was designated an enemy combatant. He was subjected to enhanced interrogation tactics (also known as torture) while waiting to be charged. The Padilla case history is not a pleasant read. It is like reading about a roller coaster that goes forward for the first half of the ride, and then goes backwards for the second half of the ride.
Ultimately, Padilla was charged just before his case reached the Supreme Court (over three years after being arrested). So yes, there were cases upon cases just to decide whether or not he would be charged.
Will Tsarnaev be held as an enemy combatant? Will he face the daunting paperwork mountain ahead of him? The paperwork alone could be deemed cruel and unusual. Whatever the outcome, this will create important precedent. If Tsarnaev was involved with a terrorist ring and he had terrorist objectives, then the War On Terror's battlefield has expanded and, well *spoiler alert* nobody is safe. There are more home grown terrorists out there. When they are caught, whatever happens with Tsarnaev will apply to them.
Politicians and talking heads across the country emotionally rant that Tsarnaev should not receive his Miranda rights and should be held as an enemy combatant. Generally, these politicians and talking heads are not lawyers. So let's leave the lawyering to the lawyers. After all, it is lawyers who made Apple's Terms and Conditions. The rest just have to click "Agree".
