By Mat Wadsworth
The world was shocked last Monday when two Improvised Explosive Devices detonated near the finish line of the Boston Marathon. Three people were killed and more than 170 people were injured, including many gruesome injuries that will remain with the victims for the rest of their lives. The immediate, visceral reaction around the world was that an act of terrorism had been committed in the United States.
On Thursday it was discovered that the two suspects were young men born in Chechnya and largely raised in the United States. Tamerlan Tsarnaev, the older brother, was in the United States on a green card, and Dzhokhar Tsarnaev, the younger brother who is currently hospitalized and will presumably stand trial for his crimes, is a United States citizen.
Despite speculation in the media about the fact that the brothers are Muslim, come from a war-torn region, and made long trips to their home country, there is no clear public information linking these two young men to any terrorist organization. It is easy for the media to criticize potential links with 20/20 hindsight. However, it seems equally apparent that we cannot suspect every person of being a terrorist just because they visit their home country, and terrorists are active in that region. Beyond being criticized for massive, unfair racial profiling, the FBI simply does not have the resources to heavily investigate every Syrian who visits home simply because there is a civil war in Syria, every Filipino who visits home simply because there are Islamic separatists in the southern Philippines, and every Mexican who visits home simply because of the extremely violent drug war that is raging there.
Without a clear connection to a terrorist organization, an organization releasing a statement claiming credit for this act, or any clear motivation at all, what makes the Boston Marathon bombing an act of terror?
Had both suspects died in the attack or trying to escape, this would be an interesting hypothetical question. But it is not. Dzhokhar Tsarnaev lived, and his status as a suspect in an act of terrorism is being treated as an excuse to strip him of his Constitutional rights. He is likely to face federal charges of committing acts of terror, officials from the Justice Department are arguing that a terrorism exception to Miranda means that they do not have to read him his Miranda rights, and several senators have argued that he should be held as an enemy combatant.
Keep in mind that Dzhokhar Tsarnaev is an American citizen who was captured on American soil after being accused of committing a crime on American soil.
Despite the apparently obvious guilt of Tsarnaev based on what is being portrayed by the government and the media, keep in mind that at this point Tsarnaev has not been legally convicted of any crime yet. In the United States, Tsarnaev is a suspect who is innocent until proven guilty in a court of law, and he has not even been formally charged with a crime at the time that this article is being written. Tsarnaev may clearly be guilty in this case. But the American people cannot and should not allow apparent guilt to be an acceptable standard for starting to strip away a suspect’s rights.
The police could designate any person as a suspect of any crime, and who is to be the judge of whether that suspect is guilty of that crime before a trial has taken place? The police who arrested the suspect? The Department of Justice that is tasked with prosecuting the suspect? A public opinion poll?
Assuming that the DOJ is correct that Tsarnaev should be charged with acts of terrorism, that they are correct that there is an extensive terrorism exception to Miranda, and that Senators McCain, Graham, and others are correct that domestic terrorism suspects (or any terrorism suspects) can be Constitutionally held as enemy combatants, then the United States needs to have a solid understanding of what is an act of terrorism. The Boston Marathon bombing may be viscerally, clearly an act of terrorism, but a gut reaction cannot be good enough for our courts or our government to start seeking convictions or to start stripping away our Constitutional protections.
“I know it when I see it,” may have been good enough for Justice Stewart to identify obscenity, but we should demand more of our government and of our courts. So what is terrorism?
Congress has defined terrorism as activities that A) “Involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State,” and B) “Appear to be intended i) to intimidate or coerce a civilian population, ii) to influence the policy of a government by intimidation or coercion, or iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.” 18 U.S.C. §2331(5).
The first part of the test is no help. Any person who is charged with murder, attempted murder, aggravated battery, aggravated assault, manslaughter, or any number of other crimes has committed acts dangerous to human life. A drug dealer who shoots a rival is a murderer, but he is not a terrorist.
The second part of the test is similarly unhelpful. There has been no information released that Boston Marathon bombers had any ties to any organization with political motives against the United States. They were Muslims, but so are over 1.5 billion other peaceful people. They were Chechen, but despite the incredibly violent reputation of the Chechen separatists, the Chechen violence has always been directed at Russia, the country denying Chechnya its independence, not the United States, a country which has had nothing to do with the conflict there.
No terrorist organization has claimed credit for the attacks. The brothers themselves have not stated a motive for the attacks. Hopefully, Dzhokhar Tsarnaev will reveal a motive in the coming weeks and months, but how can we know that his goal was to “influence the policy of a government” or “to affect the conduct of a government” until after that motive is known?
There has been some information released that Dzhokhar Tsarnaev used the word “jihad” on Twitter, and Tamerlan Tsarnaev posted some radical Islamic videos on YouTube. This is weak, circumstantial evidence that the two may have had some radical Islamist thoughts in their mind when they set and detonated the bombs at the Boston Marathon, but it is not evidence that they were seeking anything from any government. What policy or conduct of a government were they seeking to influence simply by using the word Jihad before committing their crimes?
On September 11, 2001, nineteen men hijacked four airplanes and flew them into the World Trade Center, the Pentagon, and a field in Pennsylvania. Osama Bin Laden and Al-Qaeda publicly declared a litany of reasons for their war against the US, and specific actions they sought from the United States including withdrawal of support from Israel and withdrawal of troops from Saudi Arabia. They used the 9/11 attacks in an attempt to intimidate and coerce the United States into meeting Al-Qaeda’s demands.
On April 19, 1995, Timothy McVeigh detonated a truck bomb in front of a federal building in Oklahoma City, killing 168 people and injuring hundreds of others. McVeigh directly attacked a federal building for a number of reasons including avenging what he saw as government abuses in Waco, Texas, and attacking the government for what he saw as overreaches infringing on individual liberty and gun rights. McVeigh wrote, “all you tyrannical [expletive], you’ll swing in the wind one day for your treasonous attacks against the Constitution of the United States.” There were clear political motives for his attacks, and he sought to intimidate the federal government for policies with which he disagreed.
Where is the evidence that the Boston Marathon bombers had similar political motives? Where is their list of grievances against or demands of the United States government? Where is the evidence that the Boston Marathon bombers were anything but angry young men who sought to cause damage and mayhem?
The final option left in the federal definition of terrorism is that the acts “appear to be intended i) to intimidate or coerce a civilian population.”
The Boston Marathon bombings may have had the effect of intimidating the Boston area and indeed the entire country. On Friday evening, President Obama stated that the Boston Marathon bombers “failed because the people of Boston refused to be intimidated. They failed because, as Americans, we refused to be terrorized.”
Eloquent words whose message has been repeated in various forms all week, and which are repeated every time a terrorist attack occurs. They may even be true, though the vacant streets of Boston on Friday and the attention of the country all week would seem to indicate that the attacks had some effect on that city and our country.
Either way, the statute does not require that a civilian population be intimidated. It requires that the Defendant have the intent to intimidate the population.
When the Defendants have not stated their intent, it is challenging to prove it in a court. Prosecutors in this country get convictions for crimes requiring intent every day such as attempted murder, solicitation of prostitution, or witness intimidation. Courts can find intent given enough evidence.
But how can federal agents determine intent without the benefit of a judge and jury to such a certainty that we will allow them to declare that a suspect has no or limited Miranda rights or that they are enemy combatants? Why should we trust the people whose job it is to arrest suspects and get convictions with the power to make determinations that should be made by a neutral court?
How do we even define intent to intimidate a civilian population?
Jared Loughner shot Congresswoman Gabby Giffords and killed six people at a campaign event in Tucson, Arizona. He intimidated the civilian population in the area just as the Boston Marathon bombers intimidated people, though to a lesser degree, yet he was not charged as a terrorist or classified as an enemy combatant. Why not? Is the difference simply the number of people who he may have been attempting to intimidate?
James Holmes killed twelve people and injured seventy when he assaulted a movie theater in Aurora, Colorado. He wore a gas mask, tactical gear, and threw smoke grenades. He has been charged with more than 160 counts, none of which are terrorism or attempt to commit terrorism. He killed far more people than the Boston Marathon suspects, he booby trapped his apartment with explosives, he intimidated millions of moviegoers across the country who now have to pay closer attention to where the exits are in movie theaters, and he caused premiers of The Dark Night Rises to be cancelled after the shooting. Yet, he has not been charged with terrorism, the terrorist exception did not apply to his Miranda rights, and he was not classified as an enemy combatant.
Holmes, Loughner, and every person who commits violent attacks in schools, office parks, malls, or any other public place have all committed violent acts that intimidate the population. Yet, few if any of these people are charged as terrorists. The media did not label the school shooting in Newtown, Connecticut as an act of terror. Why not?
Using the Justice Stewart “I know it when I see it” test, it seems clear that the Boston Marathon bombing was an act of terror. But why? And most importantly, who gets to make that decision, and when?
It seems apparent that Dzhokhar Tsarnaev committed attacks which resulted in the deaths of three people and injured over 170 more. Whether he committed the crimes, whether he is a terrorist, and what punishment will be sought seem like easy questions in this case. But what standards are we setting for future cases that are less clear?
Earlier this year, Senator Rand Paul launched a filibuster to demand clear answers on whether the Obama administration believed that it had the power to order drone strikes against United States citizens on American soil as it has been doing with impunity overseas. The country breathed a collective sigh of relief when Holder eventually responded:
“It has come to my attention that you have now asked an additional question: Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil? The answer to that question is no.”
If Senators McCain and Graham have their way and Dzhokhar Tsarnaev is declared an enemy combatant, he will be an American citizen officially engaged in combat on American soil. Where is Rand Paul’s filibuster now? According to Holder’s memo, the FBI could have pulled back from the boat where the final gun battle occurred, and it could have simply used a drone to fire a missile at an American citizen on American soil with no trial, no jury, and no judge.