“A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.” ~ Thomas Jefferson
No sooner do we capture Mr. Tsarnaev, than we discuss whether we should grant him his rights as an American citizen. We have already recognized the president’s de facto power to order a secret intelligence agency to assassinate American citizens. That’s correct – we have apparently accepted the CIA’s power to execute someone without due process. The justification: when you are in a state of war, public safety requires temporary suspension of some civil rights.
If we deny Mr. Tsarnaev’s rights under the Constitution, they are not coming back. We have already travelled a long way down this road. This has been a truly treacherous incline. Note two things about slopes covered with oil, ice, or public righteousness. Once you head that direction, you accelerate. No friction holds you back. Secondly, treacherous inclines remain just as slippery when you attempt to climb out of the pit. Civil rights have always had this quality: easy to lose, hard to get back.
Now we want to deny Mr. Tsarnaev the protections he possesses as a citizen in order to interrogate him more extensively and intensively. Amazing that we pull him half dead from a boat, and within twenty-four hours we allude to torture. What can be going on here? Why do we want to interrogate the suspect without a lawyer present? Why do we want to try him in a military court, or hold him without trial? Naturally, to do things to him that we could not otherwise do.
Again we want to ask, why would we want to deprive this person of his rights? Revenge is one obvious reason. Make the man pay. Public anger runs high. You can’t lynch him, but you can do the next best thing: turn him over to the tender mercies of the feds’ interrogators. Then he’ll understand pain. Why should we waste our time with a trial? We know we’ve got our man.
You will not think that way when you’re the one who’s in custody. You reply, I have nothing to fear if I’m innocent. If I abide by the law, nothing bad will happen to me.
Consider then the trial of Sacco and Vanzetti, tried for murder, convicted and executed just down the street here in Dedham, Massachusetts. The two brothers believed in anarchy, and people hated them for it. They received an unfair trial, one that had an unjust result. Nevertheless people understood that under the Constitution, they should receive a trial. No one said that because they were anarchists, one should place them in a category called enemy combatant, or non-citizen.
Similarly, the government executed Ethel Rosenberg on scanty evidence of espionage, during a Red Scare that amounted to hysteria. The feds threatened her with death if she did not testify against her husband. When she refused, they followed through with their threat. She did not receive a fair trial. Cold war paranoia and passion to get traitors sent her to Sing Sing’s electric chair.
We also know trials are unjust in the other direction: guilty defendants go free. The acquittals of O. J. Simpson and Rodney King’s assailants illustrate that. No one has ever argued, though, that we should dispense with the Bill of Rights’ guarantees because trials occasionally yield an unjust outcome. No one has said we should give up our rights because processes of criminal justice are imperfect. We have recognized those guarantees as essential protections, even if innocent individuals sometimes receive unjust treatment.
Now we hear arguments that the Bill of Rights does not apply in certain cases. No one appeals to the mentality of revenge explicitly, but it’s there. The explicit appeal is to public safety. We have to qualify, overturn, or withdraw the right to bear arms or the right to a speedy trial in order to protect ourselves from murder and mayhem. Government authorities cannot protect us if we limit their ability to do so. We have to grant government authorities greater freedom of action if we want to stay safe.
You can’t appeal to public safety in the Boston Marathon bombing, or in any other attack the feds failed to prevent, for the damage is already done. You can only argue that we have to give up this right or that freedom to prevent the next attack. After a while, you’ve given up all your rights, and the attacks keep coming. What do you do then? What do you do when the feds want to take your daughter in for questioning, because she posted something suspicious to Facebook? Will you feel safe then?
You can say that when you declare Mr. Tsarnaev an enemy combatant – now a prisoner of war – who has no constitutional protections, you deter future bombers. You can believe what you like about criminal psychology, but punishment administered swifty, surely and fairly has been our constitutional deterrent. Depriving a person of due process rights so you can mistreat him or hold him without trial may indeed enhance government’s ability to intimidate and deter, but that’s the point of constitutional rights in the first place. Government can’t threaten you with pre-trial sanctions to make you behave, before a court has determined your guilt.
Government can’t take you into custody, then treat you as if you’re guilty, before you’ve had a trial. It has already done that with Bradley Manning, a soldier who is also a citizen. People say he’s guilty of espionage; therefore we should punish him as a spy. Oddly, I don’t hear those people wonder why he has not received a speedy trial. If they believe Pvt. Manning is guilty of espionage, would they not want him to receive legitimate punishment? They must understand that to place him in solitary confinement for three years cannot help their claim. In that case, Pvt. Manning becomes a symbol of tyranny, not justice. How can dishonesty and obvious injustice ever advance your claim?
The same logic applies to any person the government holds in prison. When officials of government take someone into custody, they have already deprived that citizen of freedom. Consitutional protections require government to determine cause for continued confinement as rapidly as it can. It cannot hold you without legally established cause, period. This right to a trial is our most fundamental protection, for without it, government can do what it likes with us. Governments that do not operate under this restriction regularly disappear people. Everyone recognizes that without these protections, our government would engage in the same practice.
Yet we want to remove these protections from people we don’t like. We are in a war, they say, and warfare requires special measures. Indeed, we ought to discuss what international law requires of us as when we fight overseas. We have no grounds – in an environment of fear, hate, and revenge – to discuss rights of American citizens. If we apply laws of war to American citizens, government will have declared war on its own people. It will have declared, implicitly and explicitly, that the Bill of Rights no longer holds.
Don’t let it happen. We still say the Constitution applies in the United States. Is that pretense, or truth?