Should We Try Dzhokhar Tsarnaev For Treason?

Update: Senormedia pointed out an embarrassing error.  Fixed!

So yesterday we had a manhunt from the brothers Tsarnaev, ending in the death of one and the capture of Dzhokhar.  (By the way, I am going to charge both men with discrimination against dyslexics for having such complicated names to spell.)  So after the jubilation—I predict a baby boom arriving in the Boston area in about six nine months—the question becomes what to do with them?

Right now they haven’t even Mirandized Dzhokhar yet on the theory of it being an emergency situation.  This is one of many, many exceptions to Miranda carved out when there is a real danger and you need information now.  Like as in, you have a robbery.  The guy clearly had a gun.  But when you capture him later, you can’t find it.  In that case, a cop is allowed to ask, “where is the gun?” without first Mirandizing him, because securing the gun is an emergency matter of public safety.  If memory serves, he can still refuse to answer it but if he says, “it’s over under the couch” then that statement can be used against him at trial.

I mean not to go off too far on a tangent, but the real way to think of Miranda, at least from the judicial perspective, is as a rule of evidence.  Maybe the police will separately punish cops for failing to Mirandize, but as far as the courts are concerned, whether or not an alleged criminal is mirandized only matters if and only if you try to bring the relevant statements into evidence.  If the criminal is silent, it doesn’t matter if they were told they had a right to be, at least from the courts’ perspective.

Now from my perspective I am increasingly of the view that this guy should be treated as enemy combatant instead of a criminal defendant.  I could go on and debate that issue but rather than do that, since it is clear the Obama administration is not going to do that, let’s put that aside.  Let’s assume we are going to send him into our criminal justice system.  So what do we do with him?

Well, I for one would like to see him executed (assuming he is proven guilty, etc.).  And the question becomes how to do this.  Apparently Massachusetts doesn’t have a death penalty statute, so the only option for that is federal prosecution.

(By the way, Massachusetts, do you think you might reconsider that?  I mean, you can’t go back and make the Boston Marathon bombing a death penalty offense, but how about you guys at least say, “from now on, this sort of thing will allow us to kill you.”  I mean imagine we don’t kill him and send him to prison.  Given that these guys allegedly killed a cop, why would we think Dzhokhar wouldn’t kill a prison guard?  And what do we do with him then, if he is already serving a life sentence?)

So we go to Federal law.  And the Federal Government can execute people.  Tim McVeigh was executed by the Feds about two weeks before 9-11, ironically enough (I still wonder if he was in fact an ally of al Qaeda as some have suggested).  But you have to find a federal hook.  One, for instance, is the death of a federal official, which is probably why they executed McVeigh.  As far as I know none of the victims of the Boston Marathon bombing were federal officials.

So you go leafing through the U.S. Code.  I am not a criminal lawyer, so I don’t claim mastery of it, but I found a few statutes that would seem to apply.  For instance, there is 18 U.S.C. §844.  In subsection (d), it states that:

Whoever transports or receives, or attempts to transport or receive, in interstate or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, shall be...

...punished in various ways including death if the bombs end up killing someone.  But the problem in that statute is that you have to prove the element of interstate commerce.  So what if we can’t?  Indeed, what if all of it was made all in Massachusetts?

Later in §844(f)(3) there is a punishment for damage or destruction of property owned or rented by the United States.  A little googling around revealed no nearby federal buildings but google has its limits.  So while that provides for a death penalty—if someone dies in the process—it seems unlikely to help us.

Section 844(i) punishes

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce...

…and once again, if death results, the death penalty is on the table.  This sounds facially more promising.  It depends on how broadly the term “used in interstate or foreign commerce.”  For instance, I see on google maps the claim that a CVS pharmacy is nearby.  Some interpretations of interstate commerce allows for a company like CVS to be seen as being engaged in interstate commerce, so if the CVS was damaged... maybe it would support this charge.  Indeed arguably the marathon itself was an act of interstate and international commerce as it was a world-renowned sporting event.  It just depends on how broadly the courts interpret that phrase and if the commerce clause of the constitution is any guide, it could be very broadly indeed.

There is a federal kidnapping statute that might arguably apply (let’s not forget they allegedly carjacked a person and took them with them for several miles), but that requires the crossing of state lines, which didn’t appear to happen here.

What I am getting at is that there are lots of federal laws that allow for death, but none of them are a slam dunk.

That is, except one.  Treason.  In the Constitution it is defined as follows:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

18 U.S.C. §2381 pretty much codifies this and sets up the punishments including imprisonment and a permanent ban from public office.

The question is whether this is waging war.  Well, first, I will remind the good readers that we are still at war with al Qaeda.  That was what Congress in essence declared war against as the smoke billowed from what was left of the World Trade Center, and the war in Afghanistan was only one specific and particularly hot part of that global war.

And in Ex Parte Quirin, the Supreme Court seemed to believe that German saboteurs were waging war—albeit dishonorably—against the United States.  Blowing up a factory and blowing up a sporting event, all while wearing civilian attire—would be hard to distinguish, except that the latter is even more despicable.

The remaining question is whether it could be considered part of the campaign of terror that al Qaeda is waging.  If guilty, the Tsarnaev brothers were obviously Islamofascists—that is, adherents to the fascist interpretation of Islam.  If they were formally inducted into al Qaeda, the question would be easy.  But if they were simply inspired by it, are they part of the enemy’s campaign against us?

I would say yes.  If in 1943 an American so loved Hitler that he blew up a shipyard, it would seem to me that regardless of any formal allegiance, that this person was helping the German war effort and thus waging war against us.

But of course there is one other hurdle in our way before this can happen.  The Obama administration would have to admit that this part of the War on Terror.  They didn’t do that with the Ft. Hood massacre, even though it seems plain that this was part of that campaign of terror, even shamefully denying purple hearts to the soldiers who were wounded.  So why would they do it here?

Well, the answer is that Obama might feel compelled to do it, because it is the only way to ensure Dzhokhar Tsarnaev gets the death penalty.  He might calculate that being seen as soft on terror is worse than admitting that he let al Qaeda win won.  So there is hope Obama might rightfully charge him with treason.  We will have to see how it plays out.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.