Boston Bombings Investigation: Legal Experts Weigh In

Monday, April 22, 2013

Kate Nagle, GoLocalWorcester News Contibutor

Legal experts comment on potential next steps in proceedings with Boston bombings suspect in custody

As of Sunday night, Boston marathon bombings suspect Dzhokhar Tsarnaev had yet to be formally charged following his arrest Friday evening by authorities. Reports Sunday evening were that Tsarnaev was communicating through written means, due to the extent of his injuries.

Boston Mayor Thomas Menino told ABC's This Week program this weekend, "I hope that the U.S. Attorney takes him on the federal side and throws the book at him," adding,"[the suspects] held the city hostage for five days."

With speculation mounting as to what the nature of the charges will be -- and in what court -- GoLocalWorcester spoke with legal experts in the region over the weekend to get their perspective on the situation unfolding.

Enemy combatant status?

Following the arrest of Dzhokhar Tsarnaev, who sustained major injuries following altercations with police that saw his brother and bombings suspect Tamerlan Tsarnaev killed, there were calls from some in the political community to try Dzhokhar as an enemy combatant. As such, he could be subject to trial by military tribunal.

Senators John McCain (R-AZ), Lindsey Graham (R-SC), Saxby Chambliss (R-GA), Kelly Ayotte (R-NH), and Representative Peter King (R-NY) have all been outspoken in their support see Tsarnaev tried as an enemy combatant.

Professor of Law Jared A. Goldstein at Roger Williams University, in Bristol, Rhode Island, was one of the first civilian lawyers allowed into the Guantanamo Bay prison when he represented several families of Kuwaiti detainees, was skeptical of the potential to see Tsarnaev tried under such jurisdiction.

"So far, there is no evidence that has been reported to suggest Mr. Tsarnaev is part of an enemy force at war with the United States. To treat Mr. Tsarnaev as an enemy combatant would expand the category of enemy combatant beyond all recognition," said Goldstein. "It would empower the government to treat as enemies, outside the normal criminal processes of American courts, anyone whose crimes can be seen to target the United States."

Goldstein continued, "The Supreme Court ruled in a case called Hamdi v. Rumsfeld that U.S. citizens can be detained in wartime as enemy combatant, but there does not appear to be any basis to treat Mr. Tsarnaev as an enemy combatant. The principle the Court established in Hamdi is that, when the United States is engaged in warfare, it has authority to detain enemy forces because that is a traditional incident of war, even if it turns out that some of the enemy forces include U.S. citizens. Yaser Hamdi was captured in Afghanistan and was accused of participating in the war against U.S. forces and its allies in Afghanistan."

"Mr. Tsarnaev’s case is very different. Not only is he a U.S. citizen, the crimes he is accused of committing took place in the United States. Unlike Hamdi, Mr.Tsarnaev is not accused of participating in a war against U.S. forces. Perhaps under this theory, Tim McVeigh, Jared Loughner (accused of shooting Congressman Giffords), and the Aurora shooting, as well as the Newtown massacre, should be seen as acts of enemy combatants. Yet these acts have been treated as domestic crimes, not international war. It appears that the primary difference between those cases and Mr. Tsarnaev’s that leads some to call for treating Mr. Tsarnaev as enemy combatant is that Mr. Tsarnaev is not native-born, while the perpetrators of those other crimes were all native-born white Americans," said Goldstein.

Chief Justice Williams on tribunals -- and bigger picture

Former Chief Justice of the Rhode Island Supreme Court, as well as former Chief Judge of the U.S. Court of Military Commission Review, Frank Williams said that while he believed in the purpose of military tribunals, he didn't see it as being a likely option in the case of Dzhokhar Tsarnaev.

"Military tribunals have been, and continue to be controversial," said Chief Justice Williams on Sunday. "The fact of the matter is that there have been so few of them. [While on Appellate Court], I was involved with several hearings, but none went to trial. However, I see their value. We are, in fact, still deeply involved in a war on terror, despite what some people want to say. And we need to gather as much information as we can."

"I don't see the [Obama] Administration however as allowing for a military tribunal to take place -- period," said Williams, adding that he thought it will most likely play out in District Court. "Whether that would mean Boston, that remains to be seen. If security costs and heightened safety concerns due to the proximity to the bombing sites are a factor, we could see a trial possibly moved to another location."

"[Dzhokhar] has the right not to speak, but authorities certainly need him to," said Williams. "We need to know his motives -- and if there were others involved."

Chief Justice Williams was especially pointed in his assessment of the proceedings as they've played out in the court of public opinion, and in the press.

"We've lost the ability to be discerning, to be patient, to see things out," said Williams. "It's not healthy to speculate. We need to find the truth. We have four people dead, their grieving families, hundreds injured, amputees -- we need answers. We have an obligation to be just and fair. We all need to take a deep breath."

Williams noted that Dzhokhar was a naturalized U.S. Citizen -- and as such had taken an oath to "support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic."

"Look, if it turns out he's guilty, and he went up there [to take his citizenship oath] and pledged to keep us safe from threat -- and then turned out to be that very threat -- that fact should not be lost on anyone."