Author Topic: Boston Bomber's legal status. Enemy combatant? (Read 12478 times)

sarge712 · « **Reply #25 on:** April 21, 2013, 08:56:30 am »

Quote from: JesseL on April 20, 2013, 10:14:43 pm

I'm not at all comfortable with the notion that if you're accused of something bad enough then your civil rights evaporate.

I agree. Tim McVeigh was afforded full due process and he killed many more that the Tsarnaevs.

That being said, I like Coronach's "Flow chart" approach to determining jurisdiction.

Lest we forget, it could be one of us accused of a crime one day and I intend to make use of every bit of due process I can. In my last LEO involved shooting, I was accused of stonewalling by an FBI agent because wanted to wait for my PBA attorney. I informed the fluffer that the criminals got to wait for attorneys and therefore so did I as my rights hadn't been suspended just because I wore a badge. I was so pissed I almost waited a day before i spoke to them but my attorney felt it was better to get it over with. So, no, we should not suspend due process. That's every bit as important a concept/right as the 2A.

WeTheArmed.com

Feud · « **Reply #26 on:** April 21, 2013, 09:00:12 am »

I dislike the right to due process being considered a right for citizens or tied to citizenship. At its heart is the question of what kind of legal system and government we want. If fairness, equity, and proof is limited to this group or that, then we accept that it shouldn't be a fundamental characteristic of our society, or that government imprisonment of enemies of the state based on accusation isn't a method inherently wrong for government to employ.

In this case, this isn't a grey area of international laws of war. If they acted under orders of foreign enemies, then perhaps military trials would be appropriate. Otherwise, this was a criminal act that should be treated as such. Absent an on going threat that necessitates suspension of civil liberties (as outlined under the constitution), there is neither reason nor justice in not affording them the right to a fair trial, whether citizens or not.

booksmart · « **Reply #27 on:** April 21, 2013, 09:07:32 am »

Yes, but McVeigh was a natural born citizen, not a naturalized citizen.

I agree that it shouldn't make a difference, but it likely will.

Lupinus · « **Reply #28 on:** April 21, 2013, 10:06:03 am »

Quote from: Feud on April 21, 2013, 09:00:12 am

I dislike the right to due process being considered a right for citizens or tied to citizenship. At its heart is the question of what kind of legal system and government we want. If fairness, equity, and proof is limited to this group or that, then we accept that it shouldn't be a fundamental characteristic of our society, or that government imprisonment of enemies of the state based on accusation isn't a method inherently wrong for government to employ.

Agreed. Natural born, naturalized, or not a citizen at all has no real bearing at all IMO how someone should be treated in regards to the law. I have a big problem with creating classes of people. Even people here illegally are afforded due process under the law, as it should be.

Quote

In this case, this isn't a grey area of international laws of war. If they acted under orders of foreign enemies, then perhaps military trials would be appropriate.

To an extent I agree with this. Obviously if we're at war with another nation there is no question. But the line can get mighty blurry if all we attribute this to is foreign enemies. Who is that foreign enemy? How is it defined? A large foreign group? Meeting some random person for training or advice on his last trip to Russia? Those inspired by foreign nationals to commit acts? Personally, I think something that happens on American soil, baring perhaps an agent of a foreign government during a time of war, should be treated as a criminal matter in the courts with all due process in place.

LoneStarNational · « **Reply #29 on:** April 21, 2013, 10:16:12 am »

If we suspend due process for ANYBODY as result of terrorist activity, then the terrorists have already won.

Any official trying to suspend due process, as result of terrorist activity, should be charged and tried (through due process) for conspiring with the terrorists to destroy liberty and the American way of life.

End of discussion.

NukMed · « **Reply #30 on:** April 21, 2013, 11:41:24 am »

Quote from: Feud on April 21, 2013, 09:00:12 am

I dislike the right to due process being considered a right for citizens or tied to citizenship. At its heart is the question of what kind of legal system and government we want. If fairness, equity, and proof is limited to this group or that, then we accept that it shouldn't be a fundamental characteristic of our society, or that government imprisonment of enemies of the state based on accusation isn't a method inherently wrong for government to employ.

Amen.

freeman1685 · « **Reply #31 on:** April 21, 2013, 01:23:00 pm »

The whole "Due Process/Miranda" thing might as well be a moot point. From some of the reports I'm hearing from more than one of the large network news services, they already have a "Spontaneous Confession" uttered in the presence of a witness.

Any questioning I'm reasonably certain will be to glean intelligence as to the extent of the brother's involvement will a known Chechnian Islamic extremist. And what, who, and how many others might be involved.

Lupinus · « **Reply #32 on:** April 21, 2013, 01:39:10 pm »

Quote from: freeman1685 on April 21, 2013, 01:23:00 pm

The whole "Due Process/Miranda" thing might as well be a moot point. From some of the reports I'm hearing from more than one of the large network news services, they already have a "Spontaneous Confession" uttered in the presence of a witness.

Any questioning I'm reasonably certain will be to glean intelligence as to the extent of the brother's involvement will a known Chechnian Islamic extremist. And what, who, and how many others might be involved.

Except that they are two separate issues entirely.

Failure to read him his miranda rights just means anything they get out of him wont be admissible in court. And frankly, they don't need him to say a word.

Slapping an enemy combatant tag on him and denying due process is a whole different ball game.

freeman1685 · « **Reply #33 on:** April 21, 2013, 01:53:10 pm »

Quote from: Lupinus on April 21, 2013, 01:39:10 pm

Slapping an enemy combatant tag on him and denying due process is a whole different ball game.

Indeed it is. My point being, that if the brothers attained US citizenship under fraudulent circumstances, and it can be proven, the "enemy combatant" status is kinda a foregone conclusion.

scarville · « **Reply #34 on:** April 21, 2013, 02:17:45 pm »

Regarding mirandizing:

An American citizen should damn well know his rights without some cop having to tell him. If I cannot leave anytime I want to, it is an arrest. If I ask, "Am I free to go?" and Officer Friendly doesn't immediately answer in the affirmative then I will assume I am under arrest and act accordingly. That means I don't talk without my attorney present. I know the lawyers have created a mystical distinction between an "arrest" and a "detainment" but for an ordinary person like me that is just angels dancing on the head of pin.

You hear the mantra all the time: "Shut up and wait for your lawyer". Not always the best advice but is usually good advice. In the United States, you have a legal and Constitutional right to not be forced to incriminate yourself and it does not matter whether some official told you so. I understand the argument that not mirandizing a suspect may make anything he says inadmissible but the miranda warning is not a magical formula that converts him from a meat puppet to someone with rights.

That said, I do think that reading an arrestee his "miranda rights" is a good idea. If nothing else it might occasionally remind a cop that the guy or gal he just put in chains is innocent until proved guilty. However, the warning does not activate the rights, it merely reminds the arrestee of what his "rights" are.

Lupinus · « **Reply #35 on:** April 21, 2013, 02:29:20 pm »

Quote from: freeman1685 on April 21, 2013, 01:53:10 pm

Indeed it is. My point being, that if the brothers attained US citizenship under fraudulent circumstances, and it can be proven, the "enemy combatant" status is kinda a foregone conclusion.

Not really. Due process has nothing to do with citizenship.

Coronach · « **Reply #36 on:** April 21, 2013, 04:37:12 pm »

The problem is that you end up with a continuum of how we treat people who have, in the eyes of our society, done wrong. One the one hand, you have the common, apolitical criminal. On the the extreme, you have the solider of the foreign power. How we address the extremes are easy. It's the people in the middle that are problematic- you're not a soldier of a foriegn power but you're plainly engaged in a use of force with a political end (terrorism). In this murky middle there are few bright lines, and it is probably advisable that we cling to the ones that are there and not further blur them. Citizenship is one, location is another

Mike

Coronach · « **Reply #37 on:** April 21, 2013, 04:38:53 pm »

Quote

If I cannot leave anytime I want to, it is an arrest.

Uh. No.

Mike

Splodge Of Doom · « **Reply #38 on:** April 21, 2013, 04:53:50 pm »

Just a thought, wasn't one of the very early presidents someone who defended enemy combatants (redcoats) in court?

I seem to remember he won, proving them to be acting in self defence - while the exact circumstances are different, doesn't that provide some precedent that enemy combatants have the right to fair trial, etc?

coyotesfan97 · « **Reply #39 on:** April 21, 2013, 06:19:17 pm »

John Adams defended them but at the time they were his country's soldiers defending themselves against murder charges. It wasn't very popular at the time.

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Feud · « **Reply #40 on:** April 21, 2013, 06:29:09 pm »

Quote from: scarville on April 21, 2013, 02:17:45 pm

An American citizen should damn well know his rights without some cop having to tell him. If I cannot leave anytime I want to, it is an arrest. If I ask, "Am I free to go?" and Officer Friendly doesn't immediately answer in the affirmative then I will assume I am under arrest and act accordingly.

Not always. If you get pulled over for a traffic violation, for example you are usually not under arrest, but you are not free to go until after you've been released. Further, I believe there's a time limit in which you can be detained from leaving an area without an arrest being made. If you're held there longer it counts though.

Quote from: freeman1685 on April 21, 2013, 01:53:10 pm

Indeed it is. My point being, that if the brothers attained US citizenship under fraudulent circumstances, and it can be proven, the "enemy combatant" status is kinda a foregone conclusion.

I absolutely disagree.

Even with fraudulent circumstances, I still think a civilian trial is most appropriate here barring some evidence of acting under orders of a foreign military.

Ultimately, affording a civilian trial serves a great purpose. A civilian trial, unlike a military court or indefinite detention, holds those who have broken our laws and customs accountable before the highest authority and power that we have in our country: the people.

And there is no higher condemnation that we can give to heinous acts than to set aside the grand power of the state, and instead allow the people themselves to exercise our sovereign right to declare acts and behavior to be wrong, to be opposed to what we value, to be evil.

Lupinus · « **Reply #41 on:** April 21, 2013, 07:18:42 pm »

Quote from: Coronach on April 21, 2013, 04:37:12 pm

The problem is that you end up with a continuum of how we treat people who have, in the eyes of our society, done wrong. One the one hand, you have the common, apolitical criminal. On the the extreme, you have the solider of the foreign power. How we address the extremes are easy. It's the people in the middle that are problematic- you're not a soldier of a foriegn power but you're plainly engaged in a use of force with a political end (terrorism). In this murky middle there are few bright lines, and it is probably advisable that we cling to the ones that are there and not further blur them. Citizenship is one, location is another

Mike

I agree it's a blurred line, and when the line is blurred I think we should lean on the side of caution and not setting a potentially bad precedent.

Langenator · « **Reply #42 on:** April 21, 2013, 10:36:27 pm »

From Section 1 of the 14th Amendment:

Quote

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This section has been used to, among other things, prohibit states from denying welfare benefits to illegal aliens, as SCOTUS has held that, simple by their physical presence in the United States, they are "within its jurisdiction" and thus cannot be denied "the equal protection of the laws.

It would logically apply to criminals as well, absent positive evidence that they are in the service of some outside power.

RetroGrouch · « **Reply #43 on:** April 22, 2013, 12:10:28 am »

The phrase "We hold these truths to be self-evident, that all men are created equal..." keeps coming to mind.

He is a human being, detestable to be sure, he is a naturalized American citizen, he committed his crimes on American soil and was arrested by civilian police.

He gets treated the same as anyone else who has not been convicted of a crime. End of discussion.

Thernlund · « **Reply #44 on:** April 22, 2013, 01:17:43 am »

Those calling for him to be treated differently that any other US citizen better think really carefully about that one, lest those exceptions you keep calling for be one day applied to you.

US citizen on US soil committed a criminal act. He should be treated no differently than any other criminal would be treated here.

-T.

coelacanth · « **Reply #45 on:** April 22, 2013, 11:53:08 am »

Lest we get all high and mighty about the language the founders chose to delineate rights, remember the environment they lived in. They also chose to provide for "Letters of Marque and Reprisal" which sanctioned private citizens to commit acts of war upon the enemies of our republic. Make no mistake, they understood the ways and means of warfare - perhaps better than we do - and they undertook to make war on the Barbary Pirates as referred to in the Marine Corps Hymn. They were at war with elements of Islam just as we are today.

The gist of this discussion seems to revolve around the "right" of the government to decide who and who is not an enemy of the republic vs a common criminal in a narrow civil sense. I agree that our government is disinclined to respect the rights of its citizens these days but when you find yourself in a war not of your own making you must act in your own defense or perish. I do not wish to look back on the events of April 2013 and acknowledge that we were yet again unprepared to take the necessary action to defend ourselves just as we were in September of 2001.

I agree that Tsarnaev should stand trial in a federal court as a U.S. citizen but in the interim he should be held as an enemy combatant under the auspices of the U.S. military and interrogated as such. If he is found to be a "lone wolf" and no part of a larger organized effort then so be it - let the federal civil prosecution begin. If he is found to be a part of some organization known or previously unknown, sitting him down with a lawyer who will tell him what questions he should answer and what questions he should not is absurd.

Feud · « **Reply #46 on:** April 22, 2013, 12:02:51 pm »

Quote from: coelacanth on April 22, 2013, 11:53:08 am

I agree that Tsarnaev should stand trial in a federal court as a U.S. citizen but in the interim he should be held as an enemy combatant under the auspices of the U.S. military and interrogated as such. If he is found to be a "lone wolf" and no part of a larger organized effort then so be it - let the federal civil prosecution begin. If he is found to be a part of some organization known or previously unknown, sitting him down with a lawyer who will tell him what questions he should answer and what questions he should not is absurd.

If I understand you correctly: you want him held and interrogated by the military, but tried in civilian courts. Does that mean you want the military to conduct domestic law enforcement functions? That's what it sounds like.

coelacanth · « **Reply #47 on:** April 22, 2013, 12:11:55 pm »

Not at all. I do expect the military to conduct such operations as necessary to defend the United States. Nobody seriously expects the military to be "hands off" if a foreign power mounts a military operation on the territory of this country. That is outside the purview of posse commitatus. If you think we are not in a war with people who would see our country subjugated you have not been paying attention.

booksmart · « **Reply #48 on:** April 22, 2013, 12:22:51 pm »

http://www.huffingtonpost.com/2013/04/19/lindsey-graham-bombing-boston-suspect_n_3118731.html

Thernlund · « **Reply #49 on:** April 22, 2013, 04:21:34 pm »

Quote from: coelacanth on April 22, 2013, 11:53:08 am

I agree that Tsarnaev should stand trial in a federal court as a U.S. citizen but in the interim he should be held as an enemy combatant under the auspices of the U.S. military and interrogated as such. If he is found to be a "lone wolf" and no part of a larger organized effort then so be it - let the federal civil prosecution begin. If he is found to be a part of some organization known or previously unknown, sitting him down with a lawyer who will tell him what questions he should answer and what questions he should not is absurd.

Quote from: Feud on April 22, 2013, 12:02:51 pm

If I understand you correctly: you want him held and interrogated by the military, but tried in civilian courts. Does that mean you want the military to conduct domestic law enforcement functions? That's what it sounds like.

That's how I read that as well.

Realistically, the US military and the appropriate intelligence agencies should probably be allowed to submit lists of questions they need answered to the FBI and/or Boston PD who will surly be doing the questioning. But in no way should said agencies or the military be directly involved in said questioning. They shouldn't even be on-site.

I fail completely to see why Dzhokhar Tsarnaev should be treated ANY different than Jared Loughner or James Holmes. Someone care to explain to me how they are different?

(^^ Rhetorical question... they aren't different.)

-T.