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  1. #61

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    Next for Boston suspect: Five legal questions

    By: Josh Gerstein
    April 19, 2013 10:06 PM EDT

    With Dzhokhar Tsarnaev taken alive, the focus now turns to how the Obama administration is going to seek to bring the Boston Marathon bombing suspect to justice.

    Lawyers have already made one potentially critical decision: he hasn’t been read his Miranda rights, at least for now. This means that FBI investigators may have a shot at trying to question him about other potential plots he may be aware of and whether anyone other than his deceased brother was involved in Monday’s bombing or Thursday night’s crime spree.

    But if, for example, Tsarnaev’s injuries leave him too incapacitated through the weekend to be questioned, it might not matter that he didn’t get mirandized because the judge will read him his rights probably at his bedside on Monday.

    Meanwhile, a host of other questions are already bubbling up, from whether he’ll tried in civilian or military court to whether he’ll face the death penalty for crimes that include killing three people in the explosions and a police officer on the MIT campus.

    Here’s POLITICO’s guide to the five key questions—and what’s known about the answers—that are ahead.

    Why does the Miranda issue matter?

    After the Justice Department decided not to immediately read Tsarnaev his Miranda rights, a debate broke out among lawmakers, lawyers and political activists over whether the suspect, Dzhokar Tsarnaev, 19, should be prosecuted in a civilian criminal court or subjected to military interrogation — and over when and whether Tsarnaev should be told about his right to an attorney.

    “No Miranda warning to be given” now, a Justice official told POLITICO Friday night. “The government will be invoking the public safety exception.”

    That may increase the possibility that Tsarnaev will quickly offer up information about whether he and his brother, who was killed in a shootout Thursday night, acted alone in the bombings or whether they were directed, supported or trained by forces abroad.

    Beginning several hours before Dzhokhar Tsarnaev’s capture, Sen. Lindsey Graham (R-S.C.) wrote on Twitter that the suspect ought to be placed in military custody.

    “If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes,” Graham wrote Friday afternoon. “The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.’”

    “The Law of War allows us to hold individual in this scenario as potential enemy combatant w/o Miranda warnings or appointment of counsel,” the senator added later in the evening. “I hope the Obama Administration will seriously consider this option….The goal is to gather intelligence and protect our nation which is under threat from radical Islam.”

    “NBC reporting Obama admin will treat terrorist as a ‘criminal’ and not enemy combatant,” former State Department official Liz Cheney wrote on Twitter Friday night. “Will Obama allow him to lawyer up?”

    How does the public safety exception work?

    The Obama administration appeared to be taking a middle course, holding off on advising Tsarnaev of his rights, but still directing him into the criminal justice system for prosecution.

    The Justice Department signaled that it planned to rely on a 1984 Supreme Court case that said a suspect’s statements can be used against him even if he was not immediately read his rights if police got the answers while asking questions aimed averting a threat to public safety.

    The precise contours of that exception in a terrorism case are not clear, although a judge upheld that exception in connection with questioning of the so-called “underwear bomber” on a Delta flight bound for Detroit on Christmas Day 2009.

    Still, some experts said holding off on reading Tsarnaev his rights was ill-advised, particularly since law enforcement officials declared that after the suspect’s arrest the threat to the public was over.

    ”The FBI is making a serious mistake by not giving him his Miranda warning….Let’s not give him any excuse to be able to successfully argue that his rights were denied,” Harvard Law Professor Alan Dershowitz said on CNN.

    If a court found that Tsarnaev was not read his Miranda rights, the usual consequence would be that any statements he made prior to being read his rights could not be admitted at trial. However, prosecutors might not need such statements if they have overwhelming evidence of Tsarnaev’s guilt.

    During a news conference shortly after the suspect was captured, U.S. Attorney for Massachusetts Carmen Ortiz did not directly confirm that the suspect was not read his rights. However, she noted the law allows for exceptions. “There is a public-safety exemption in cases of national security and potential charges involving acts of terrorism,” Ortiz said.

    Will prosecutors seek the death penalty — and will Tsarnaev get it?

    Under federal law, there’s little doubt that Tsarnaev could be eligible for the death penalty. Using a weapon of mass destruction, such as a bomb, in an attack that results in death can lead to capital punishment.

    While it might seem a foregone conclusion that the federal government will seek the death penalty in such a high-profile case, and one stemming from terror spree that killed four and left more than 170 injured, that decision is less of a sure thing than many people would think.

    Ortiz indicated Friday that call was a long way off.

    “Before that kind of a decision is made, in terms of whether or not to seek the death penalty, you review all of the evidence and it’s a very thoughtful, long process that is engaged and it’s the attorney general of the Department of Justice that makes that final decision,” Ortiz said in response to a question at the news conference that followed Tsarnaev’s capture Friday night.

    As prosecutors consider whether to seek the death penalty in the case, they’ll consider aggravating and mitigating circumstances. Under federal law, attempting multiple murders, “heinous, cruel, or depraved” acts or those that are the product of “substantial planning and premeditation” can lead to the death penalty. However, Tsarnaev’s lawyers will be able to argue that his mental capacity was impaired, that he may have been under the “duress” of his elder brother, or that his participation on the offense was “relatively minor.”

    The prosecution might also enter into a plea bargain for a life sentence in order to avoid the risks of a trial, particularly if an insanity defense seems plausible.

    Tsarnaev won’t face the death penalty under state law because Massachusetts does not have capital punishment. That could also complicate the Justice Department’s thinking on the issue. Under Democratic administrations, the feds have generally been reluctant to pursue the death penalty in states which don’t have capital punishment. However, President George W. Bush’s administration did so.

    President Barack Obama supports the death penalty. Attorney General Eric Holder issued guidelines discouraging federal capital cases in states that don’t have the death penalty, but the Justice Department is currently pursuing such a case in Puerto Rico.

    Of course, prosecutors would also have to get a jury to unanimously agree that death and not life in prison was the correct penalty for the crimes.

    What kind of court will Tsarnaev be tried in and how soon will he show up there?

    When Ortiz said her office would “continue to evaluate and file our formal charges,” she also seemed to imply that Tsarnaev would face justice in a civilian federal court.

    At the moment, the debate over Tsarnaev’s Miranda rights may be moot because, according to police, he was severely injured and bleeding at the time he was captured. When answering a question about the public safety exemption, Ortiz added: “Right now, I believe though, the suspect has been taken to a hospital.”

    A joint FBI/CIA interrogation unit that Obama established to handle terrorism cases has been activated and is on the scene, the DOJ official added. “The high value detained interrogation group is on site,” the official said.

    Regardless of when or if Tsarnaev is Mirandized, if he asks for an attorney, questioning of him will be required to stop. Lawyers who attempt to question him or direct questioning of him once he asks for an attorney would be violating legal ethics and Justice Department policy.

    While some legal experts said Friday that Tsarnaev would likely make a court appearance by Monday, if investigators want more time to question him they could ask him to delay his presentation in court. Such waivers have been obtained in a series of recent terrorism cases, including that of Times Square bomber Faisal Shahzad in 2010 and the ongoing prosecution of Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith.

    At Tsarnaev’s initial appearance in court, a judge or magistrate will advise him of his rights and make sure he has access to a defense lawyer.

    In 2010, the Obama Administration floated the idea of legislation that would allow it to delay taking arrested terrorism suspects to court for about two weeks without getting any waiver from the person involved. However, the administration appeared to drop the idea a few months later, apparently satisfied that it had the flexibility it needed in existing law.

    The FBI says Tsarnaev is a naturalized citizen — what difference will that make?

    Graham’s proposal that Tsarnaev be put in military custody faced one significant obstacle: the man reportedly became a U.S. citizen last year. That would preclude prosecuting him under the current military commissions law, since U.S. citizens are explicitly outside its jurisdiction.

    Whether Tsarnaev could legally be interrogated or detained by the military raises legal questions the Supreme Cout has never definitively addressed. Under President George W. Bush’s administration, U.S. citizen Jose Padilla was held in military custody as an enemy combatant for more than three-and-a-half years on suspicion he planned to detonate a radioactive “dirty” bomb in Chicago.

    The U.S. Court of Appeals for the Fourth Circuit upheld Padilla’s detention in 2005, but after his lawyers asked the Supreme Court to take up the case, the Bush Administration had Padilla indicted on unrelated criminal charges in an apparent effort to avoid a definitive ruling on the issue of whether citizens can be detained. The Supreme Court eventually declined to consider the issue of Padilla’s military detention.

    Graham contends that a 1942 Supreme Court decision upholding a military trial for Nazi saboteurs who landed in Long Island during World War II authorizes the detention of Americans as enemy fighters. One of the men in the WWII case was a U.S. citizen.

    However, in a floor debate last year, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) argued that the justices never considered the right to hold an American arrested on U.S. soil as an enemy combatant. She also said holding an American in military custody could violate a 1971 law that says citizens can only be imprisoned or detained pursuant to a duly-passed law.

    Another potential obstacle to military detention: It’s also unclear whether Tsarnaev is connected with any group related to the September 11, 2001 attacks or to the Taliban in Afghanistan. Those are affiliations which can render someone eligible for detention under the Authorization for Use of Military Force passed soon after the attacks.

    © 2013 POLITICO LLC

  2. #62

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    Infrared image of Dzhokhar Tsarnaev hiding in the boat.



    A dead body will still give off a heat signature; the blurry edges indicate that he's moving.

  3. #63

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    Quote Originally Posted by ZippyTheChimp View Post
    Meanwhile, a host of other questions are already bubbling up, from whether he’ll tried in civilian or military court to whether he’ll face the death penalty for crimes that include killing three people in the explosions and a police officer on the MIT campus.

    Beginning several hours before Dzhokhar Tsarnaev’s capture, Sen. Lindsey Graham (R-S.C.) wrote on Twitter that the suspect ought to be placed in military custody.
    Other than the fact that Lindsay Graham is an empty suit and a hack, how exactly does that make sense? Tsarnaev is a US citizen. Even if his activities were directed by radical nationals, are we at war with them?

    It goes without saying that this is a horrible tragedy for the people of Boston and the victims of the attack. My sympathies and condolences go out to them. They can possibly take some solace in the knowledge that Tsarnaev will feel the full brunt of the law and rightfully so.

    Yet - and I know this is not going to sit well with a lot of people on this site- I can't help but feel badly for Dzhokhar Tsarnaev as well. He is 19 years old - a kid for Christ's sake- and his life is over. I can only imagine what he must have went through the night of his capture - just 19, the brother who he idolized dead, on the run, with the whole of the Boston police and local FBI chasing him down. Alone, isolated, and seriously wounded. Indications are he may have been manipulated by that same brother who abandoned him by dying. A brother who was clearly troubled and not adjusted to life in the US

    I am not excusing his actions. He will likely face the death penalty or spend the rest of his life in jail, and based on what little we know, I would be hard pressed to explain to you why he shouldn't. But I can't help feeling badly for him too. God almighty, 19 is just a baby.
    Last edited by eddhead; April 20th, 2013 at 08:51 PM.

  4. #64
    Disgruntled Optimist lofter1's Avatar
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    I would think trying him as a citizen would have advantages.

    Couldn't they thereby add Treason to the long list of counts against him?

    What he swore to on September 11, 2012:
    Naturalization Oath of Allegiance to the United States of America

    Oath

    "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

    The principles embodied in the Oath are codified in Section 337(a) in the Immigration and Nationality Act (INA), which provides that all applicants shall take an Oath that incorporates the substance of the following:


    1. Support the Constitution;
    2. Renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the applicant was before a subject or citizen;
    3. Support and defend the Constitution and laws of the United States against all enemies, foreign and domestic;
    4. Bear true faith and allegiance to the same; and
    5. A. Bear arms on behalf of the United States when required by the law; or
      B. Perform noncombatant service in the Armed Forces of the United States when required by the law; or
      C. Perform work of national importance under civilian direction when required by the law.


  5. #65
    Disgruntled Optimist lofter1's Avatar
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    Quote Originally Posted by eddhead View Post

    He is 19 years old - a kid for Christ's sake- and his life is over.
    First, he's not a kid. He's a full adult. He freely took on the responsibility of being a citizen of this country. Many younger than he have made the choice to give their own lives so he could have the opportunities offered by that which he swore.

    And his life is far from over. It will be a long one. A living hell, no doubt, but he'll be alive. Probably much of it will be spent being confronted with the horrible reality of what he's done: Depositions, questions, all forcing him to face the results of his heinous acts (photos & videos), not to mention the survivors sitting with him in the courtroom as he learns his fate. Anyone that empty of empathy & compassion deserves no less.

    He should only pray his life is over.

  6. #66
    Disgruntled Optimist lofter1's Avatar
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    Quote Originally Posted by eddhead View Post

    Indications are he may have been manipulated by that same brother who abandoned him by dying. A brother who was clearly troubled and not adjusted to life in the US ...
    He should have figured that out before he loaded the bomb. Better if he'd run his brother down with his car before he slaughtered innocents and had the full force of justice bearing down on him.

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    Quote Originally Posted by lofter1 View Post
    He should only pray his life is over.
    I heard on WCBS880 that he shot himself in the mouth in a suicide attempt but the bullet just went through the back of his throat and was not fatal. As a result he is currently unable to speak

  8. #68

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    Quote Originally Posted by lofter1 View Post
    First, he's not a kid. He's a full adult. He freely took on the responsibility of being a citizen of this country.
    There's a difference between his being responsible as an adult for what he did, which I don't think Eddhead (or anyone else here) is disputing. He has to stand trial and pay for his crimes.

    But for an answer to how he arrived at a point where he could do such things, the question of whether or not "he's a kid" is relevant.

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    Disgruntled Optimist lofter1's Avatar
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    Sometimes too cool isn't ^

    Before (top @ 7:22:36 PM) and After (bottom @ 8:01:24 PM) the fire fight?

    Somehow that ladder got knocked over.

    Quote Originally Posted by ZippyTheChimp View Post

    Infrared image of Dzhokhar Tsarnaev hiding in the boat.

    Quote Originally Posted by GordonGecko View Post


  12. #72
    Disgruntled Optimist lofter1's Avatar
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    These shots, taken between the others at &:35:42 & 7:36:03 PM, explain how the ladder got knocked over:




    MASSACHUSETTS STATE POLICE

  13. #73

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    @ ZIP - Those are exactly my thoughts. I thought I was pretty clear about the need to hold him accountable as an adult. As I mentioned previously, he will likely face the death penalty or life in prison, and justifiably so.

    @ Lofter - But that doesn't make is any less tragic and that doesn't make his final hours before getting caught any less terrifying. And while he should and will face the full weight of justice, I will remind you that if 19 year olds had fully developed empathetic instincts, and adult judgement, we probably wouldn't send them off to fight our wars.

    I am not excusing what he did, nor suggesting he shouldn't be accountable for his crimes, but I do think his age is relevant in explaining his mindset and how we arrived at where he was. And the fact he should and will be accountable doesn't make the effective ending of a 19 year-old's life any less sad.
    Last edited by eddhead; April 21st, 2013 at 01:14 AM.

  14. #74
    NYC Aficionado from Oz Merry's Avatar
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    Thank goodness he's no longer Australian.


    Rupert Murdoch Defends New York Post's Boston Bombing Coverage

    By Jack Mirkinson

    Rupert Murdoch issued a belated defense of the New York Post's coverage of the Boston Marathon bombings on Saturday.

    The paper has been besieged with criticism for its faulty reporting of the attacks. The Post said 12 people had died, when only three had; it said a Saudi man was a "suspect" in "custody", when he wasn't; and, perhaps most gallingly, it splashed pictures of two young men on its front page even though it admitted it did not know whether they were suspects or not. The men turned out to be completely innocent. One was 17 years old; he told the Associated Press that he was scared to go outside.

    The Post is not a paper that apologizes very often, and it did not apologize for its Boston coverage either. Its owner continued that trend when he tweeted about the controversy on Saturday:
    Murdoch did not address how one can "withdraw" the front page of a printed newspaper from circulation.

    PhDcommonsense
    The young men whom the Post erroneously labeled as the Suspects should hire an Attorney and go after this Paper for putting their lives and family in Peril. All they needed would be a "so called Good Guy with a Gun" to take matters into their own hands.

    stratego
    I agree. Fanned. I am sure that any settlement will be tiny in proportion to the sales this so called "mistake" generated.

    http://www.huffingtonpost.com/2013/0...p_ref=new-york

  15. #75

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    ^ I hope The "Bag Men" successfully sue The Post for this.

    One wonders if a jaundiced view of Russian intelligence agencies led them to take this early warning from Russian authorities in 2011. The FBI new about he older brother and then dropped him from scrutiny.

    FBI was warned 2 years ago of alleged bomber’s radical shift


    By Mark Arsenault, Bryan Bender, Milton J. Valencia and Maria Cramer
    Globe Staff / April 20, 2013



    Russian authorities warned the FBI in early 2011 that suspected bomber Tamerlan Tsarnaev may have been a follower of “radical Islam,” a revelation that raised new questions in Congress on Saturday about whether the Boston Marathon attacks that killed three and wounded more than 170 could have been prevented.

    A senior congressional aide privy to the Boston Marathon terror investigation confirmed Saturday that the FBI received the warning after Tsarnaev’s apparently suspicious activities caught the attention of Russian authorities keeping close surveillance on militant Islamist groups in the Caucasus region of the former Soviet Union.

    The FBI acknowledged Friday that it had investigated Tsarnaev in 2011, even interviewing him and his family, but “did not find any terrorism activity,” either domestic or foreign.

    “The FBI had this guy on the radar and somehow he fell off,” said the congressional aide, who said oversight committees on Capitol Hill are seeking answers from counterterrorism officials. “We heard for several days leading up to this there was no intelligence. Now we know there could have been intelligence.”
    Last edited by hbcat; April 21st, 2013 at 08:25 AM.

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