Thursday, April 25, 2013


A number of legal issues are swirling around Dzhokhar Tsarnaev.

i) I’ve read some libertarians criticize Holder for failing to Mirandize the suspect right away. However, this confuses having Constitutional rights with an alleged Constitutional right to be read your Constitutional rights. To have due process rights under the 5-6 Amendments is not the same thing as having a Constitutional right to be told what your Constitutional rights are.

That involves the burden of proof. Does the onus lie on the person arrested to know his Constitutional rights, or on the gov’t to inform him of his Constitutional rights?

The Miranda warning is a judicial ruling, not a Constitutional right. That was handed down by the Warren Court, which was the mother of judicial activism. Indeed, the dissenting justices in the case attacked the majority opinion as judicial activism:

It’s ironic to see some libertarians rush to the defense of judicial activism.

Keep in mind that ever so many undoubtedly dangerous, undoubtedly guilty suspects have been have been released on this judicial technicality, enabling them to harm additional innocent victims.

ii) To my knowledge, the original design of the 5th Amendment was to protect the accused from confessing to a crime under torture. Extorted confessions.

That, however, is different from questioning a suspected terrorist to gather intelligence. As long as the information he divulges can’t be used against him in a criminal prosecution, I believe he can be compelled to speak without violating his 5-6 Amendment rights.

iii) Another issue is whether Dzhokhar Tsarnaev should be treated as an illegal enemy combatant. Until recently, I believe that designation was reserved for noncitizens captured on the field of battle, not for an American citizen captured on American soil. Unlike the previous issues, libertarians are understandably concerned about creeping power of an American president to unilaterally reclassify an American citizen.

Of course, the fact that Dzhokhar Tsarnaev is a naturalized American citizen in the first place raises questions about our lax standards. Naturalized citizenship is a privilege, not a right. Dzhokhar Tsarnaev has a Constitutional right to be tried as a traitor under article 3, section 3 of the US Constitution.


  1. Dzhokhar Tsarnaev has a Constitutional right to be tried as a traitor under article 3, section 3 of the US Constitution.

    Oh, good call.

  2. Another issue which raises questions about our lax standards is what the punishment will be if Dzhokhar Tsarnaev is found guilty. If Wikipedia isn't mistaken, Massachusetts abolished the death penalty back in 1984. So would his punishment be life imprisonment? If so, how would that be just to his victims and their friends and families? Let alone to the nation he betrayed?

  3. But treason is a federal charge, and death is the obvious sentence in the US Constitution.

  4. Thanks, Rhology. I'd agree that's how it should play out.

    However, it's apparently not always so straightforward (e.g. I hope I'm wrong but I wouldn't be surprised if Obama commuted the sentence to life imprisonment):

    "According to the Constitution, punishment can be set by Congress, but not to include corruption of blood or forfeiture extending beyond the offender's life. Quite apart from this limitation, Justice Joseph Story notes the explicit grant of congressional power over punishment was intended as a leniency, to preclude the assumption of the common-law punishment's harshest elements. The First Congress used its constitutional power of declaring the punishment for treason by establishing the penalty of death, with seven years' imprisonment for misprision of treason.

    "The actual punishments for those convicted of the federal crime of treason have generally been more lenient than the statutory maximums. Those convicted for their part in the Whiskey Rebellion were pardoned by President George Washington. The United States government regarded Confederate activity as a levying of war, but all Confederates were pardoned by presidential amnesty. Max Haupt, convicted for giving aid and comfort to his alien son, was spared death and sentenced to life imprisonment. (His son Herbert was convicted by a military tribunal for his role as saboteur, and executed.) Tomoyo Kawakita, convicted of treason for abusing American prisoners of war, was sentenced to death but had his sentence commuted to life imprisonment by President Dwight D. Eisenhower. By contrast, the Rosenbergs' espionage convictions brought death sentences.

    "Of the two successful prosecutions for treason at the state level — Thomas Dorr in Rhode Island in 1844 and John Brown in Virginia in 1859 — only Brown was executed. Dorr was pardoned, and elements of the political agitations for which he was convicted were soon adopted into law in Rhode Island."