What legal rights should Boston bombing suspect Dzhokhar Tsarnaev have?


97 Responses to “What legal rights should Boston bombing suspect Dzhokhar Tsarnaev have?”

  1. Sigmund_Jung says:

    You have no rights; you have privileges.
    RIP George Carlin

    • thaum says:

      To be revoked by whom?

    • teufelsdrochk says:

      Also, does anyone have an internet rule as strong as Godwin’s law for people who try to make clever remarks/retorts without reading or paying any attention to what’s being discussed? Seems like such a thing must have been invented…I know, in the old days, if someone said something that had been discussed a zillion times it was a ‘trout’.

      So, you wouldn’t reply…not exactly a troll…you’d yell ‘trout’ and toss out chat emoticons for trouts. Is there a similar meme today? For somebody who just hasn’t followed what’s going on?

  2. Matthew Elmslie says:

    This is partly a nitpick but I think there’s an actual point in it: the question isn’t what rights should he have, the question is what rights does he have. (My answer: same as anybody else, whether they’re read to him or not.) And then the other question is, will those rights be respected.

    • bzishi says:

      If that was the case, you could simply show Lindsay Graham or Carmen Ortiz the definition of ‘rights’ in the dictionary. They are subtly asking a different question. They are asking if the government can have free reign to do whatever it wants without restriction if a suspect is hated by everybody. Cheney asked the same question a decade ago. And Bush answered ‘yes’. I hope we have learned from that example. It isn’t a limited government if you can do whatever you want if you get really angry.

      • headcode says:

         “If that was the case, you could simply show Lindsay Graham or Carmen Ortiz the definition of ‘rights’ in the dictionary.”

        Or you know, like, in a book of laws and statutes or something.  It’s not like we don’t have the definitions.  What we lack are people with integrity.  People who want to do what they feel like instead of acting according to law.

        • theophrastvs says:

          exactly.  why have written laws and precedents at all if you’re just going to decide these matters by taking a poll?

  3. Rob says:

    Professor Dershowitz is far more optimistic than I am.

  4. jansob says:

    I’m to the right of most on BB, and am disappointed to see the ” should” in the question. As a citizen he has the same legal rights as I do. Rights are rights, not to be granted or withheld depending on the situation. Too many on the left and right see rights only as political/opinion-based tools….inalienable rights when it’s an activity I approve of, revocable when it’s an activity I do not.
    Even if he’s not Mirandized he still can remain silent and have a lawyer…his rights didn’t go away, they’re delaying reminding him of them for a short time

    • Kirby_G says:

      As a Canadian, I was wondering about their delaying reading him his rights.

      Does he seriously not have Miranda rights until it is read to him? Does the reading of the rights grant some extra status that isn’t there if they delay it?

      • Clint Barker says:

        He still has those rights. Any statements he makes, however, would be difficult to admit into court.

        An actual lawyer explains this far better than I:

      • jansob says:

        Reading him his rights is just that…a reminder of his rights. The rights exist regardless. He can refuse to talk and demand counsel regardless of whether they tell him he can. I think the idea was that in the stressful situation of being investigated people would self-incriminate if cops were asking questions, so they required the cops to remind them if their rights.

      • DevinC says:

        I’m also Canadian; our rights up here are very different.  
        Last summer I was playing cards with friends outside, late at night, when a car full of very stoned young gentlemen caused a bit of a ruckus.  They eventually collided with a large rock.  We’d phoned the cops, who found one guy (the others had run.)  They kept asking him, “Were you the driver of the vehicle?” over and over.  A positive answer would have obviously been self-incriminating (over and above any extralegal methods used to procure the vehicle in question.)  

      • Daemonworks says:

         I read something recently (I thought it was here, but I could be mistaken) in which it was decided that the cops can postpone reading the miranda rights under certain circumstances. I think it was intended to be situations where there was some reason to believe that lives may be in jeopardy if answers weren’t forthcoming immediately – “where’ the other bomb?” or the like.

      • wysinwyg says:

         In fact, I get the impression that not being read your Miranda rights is just about meaningless in a court of law.  I’ve known people who were arrested and not mirandized and none of the legal advice they received mentioned so much as bringing it up in court.

    • Fnordius says:

      True, and I think showing restraint would have been the best response because it denies the perpetrator any chance to see himself as resisting a wrong. “Sorry, kid,” the response should have been, “you’re not going to get the overreaction you seem to want. You’re not an enemy combatant, but just another criminal.”

  5. Sarge Misfit says:

    To suspend his rights would give a win to the terrorists, whether they were behind it or not.

    • Antinous / Moderator says:

      That’s why they call it the rule of law, not the suggestion when it’s convenient of law.

      • Jen Onymous says:

        Antonius–EXACTLY.  As per my comment below, my personal wishes towards how this young man should be handled (and how anyone else, no matter how grievously harmed)  are irrelevant, period. 

        The perp here is a CITIZEN.  If we start saying that US citizenship can be involuntarily revoked, we’re going down a whole nuther level of the ultimate decay of the US.

        And, you had better believe that the next legal tack that is going to be taken is a full-on-frothing over how this guy was sworn in as a citizen and how to prevent “future mistakes.” I’d bet a year’s supply of bacon donuts that once the perp is mirandized or dies or both, that’s the next shitstorm to hit the papers.

        • Antinous / Moderator says:

          We don’t make laws so that we know how to behave at ice cream socials; we make them so that we know how to behave when something terrible happens.  We should really follow through with that when the time comes.

          • Snowlark says:

            Please, please tell me you write for a living.  Because you really should.  Fantastic distillation, and one that I’ll be quoting for a while.

        • ffabian says:

          “The perp here is a CITIZEN.  If we start saying that US citizenship can be involuntarily revoked, we’re going down a whole nuther level of the ultimate decay of the US.”

          It’s indeed a dangerous idea to involuntarily revoke the citizenship. This instrument has been used in the past to remove and eradicate unwanted parts of a population. That’s the reason why e.g. the german Grundgesetz (german Constitution) expressively forbids the involuntarily revocation of citizenship (§16 GG). Germany has learned from it’s past – perhaps it’s time for the US to take a leaf out of this book because the slope is becoming more slippery every day.

        • L_Mariachi says:

          Citizenship is irrelevant here. Foreign nationals have the same basic legal rights as U.S. citizens, with a few exceptions such as voting or running for higher office or entering the country without a visa, none of which are actually rights to begin with.

  6. teapot says:

    After putting this asshole through the legal wringer (with daily, nay hourly reminders that he drove over and killed his brother) I’m looking forward to hearing that he’s topped himself or been topped in prison.

  7. Eric0142 says:

    Slow your roll, people. From that list, Dersh is the only lawyer and the only one who makes any sense.

  8. “What legal rights should Boston bombing suspect Dzhokhar Tsarnaev have?”

    All of them?

  9. Boundegar says:

    Part of the problem is, we no longer have a common agreement about where those rights come from.  Are they God-given?  Are they granted by the State?  Or by the will of the people?  Every possible answer opens up a can of worms.  But the worst answer is the one we use daily – to ignore the question. That way, we only have the rights the powerful choose to respect.

    • sdmikev says:

      I think we “no longer have agreement” because politicians have used these rights as wedge issues, pushing and pulling them in different directions in order to gain whatever perceived gains are to be had.
      Someone told me the other day in the office just to throw these guys (before they were caught and one of them killed.) in jail and chop them up, etc..
      And I have to remind them that these knee-jerk mob-rule dipshit things are EXACTLY why we adhere (hopefully) to the rule of law and why we’re not fucking Saudi Arabia.

    • Marja Erwin says:

      Some rights aren’t so much given as *taken,* won through struggle against arbitrary power.

      Allowing power to violate innate human rights is wrong.

      Allowing power to violate hard-won rights is stupid.

    • peregrinus says:

      Don’t matter much none where’n they come from, I reckon.  Matters what’s on the books.

    • wysinwyg says:

       They come from fuzzy consensus of the governed and are safeguarded by the state.  This is an unstable system and prone to abuse but so far no one seems to have come up with anything better. 

  10. iburl says:

     What about the rights of millions of people who were forced to stay in home-prison because all the big boys with the big toys wanted the city to themselves. What about the rights of the guy that was forced to strip naked at gunpoint and then released? I think one of the most basic steps in combatting terror is not to shit your pants when somebody tries to terrorize you.

  11. Jen Onymous says:

     Hmmm, it’s not going to happen but it would be highly amusing to punish him according to the laws of the Taliban/other extremist Muslim group, if he had committed a similar crime for similar reasons (ie imagine a Christian missionary blowing shit up in Mecca during Hajj season). 

    Having said that, like it or not, he’s a US citizen and needs to be tried as such (even though I personally believe that just punishment would involve flesh-eating beetles, a can of gas, and a match).

    • Marja Erwin says:

      It won’t be us doing it. It will be the government doing it. Except that the government has already done it, for example the Wilson administration did it, and set the practical precedent that they can start doing it again.

      • Tynam says:

        You have the right to a fair trial… unless you’re a teenager whose father was accused of being a terrorist and you’re not at home right now.  In which case, what the hell, you can just blow up.

      • er0ck says:

         if you are an American citizen, the government does EVERYTHING in your name.  so it is YOU (and i) doing it.

  12. Nigel_T says:

    So what if they don’t Mirandize him? For the moment, it’s irrelevant. The BOR’s protections against self-incrimination are stronger if he’s NOT Mirandized, because it means he has not waived his rights if he does talk. 

    I assume the cops and feds have enough physical evidence and testimony by others to convict him regardless of how he may incriminate himself until his rights are read to him. In the meantime, let him rat out as many co-conspirators as he may have. They have no protections against someone else incriminating them, so why give him an excuse not to talk.

    If / once this thing goes to trial, and if the prosecutors try to slip in self-incriminating anything he said pre-Miranda, then I’ll cry bloody murder. But even then, a judge, and appeals courts etc etc etc would have to sign off. 

    Remember, Congress, cops, lawyers, Presidents, and prosecutors cannot take away your rights. Only judges can. The other two branches can try, but only the third can actually make it happen.

    • Tynam says:

      …except in the many cases that don’t go to trial, preventing a judge from getting a look-in.  But you’re completely correct.

  13. asfd asfd says:

    This is a moronic subject.  The Constitution doe NOT say there are exceptions to civil rights for age, religion, ethnicity, political leanings, race, skin color, IQ, or anything else.   Anyone who think that he does not have all the rights that anyone else in the country has is a traitor to the Constitution and a disgrace to the very concepts of decency, morality, ethics, or civic virtues.  Either we are America or we are no better than some third world dictatorship.  And if we are America then we must act like it even when we don’t like it. We must have the courage to actually live and act according to the principles that made this country the hope and beacon for the rest of the world or we may as well burn the Constitution and start calling ourselves Mobutuland.

  14. captainkona says:

    If the guy is an American citizen he has the same rights as any of us. If they can be taken from him they can be taken from you and me.
    This is why even bums like Obama can get elected over a GOP candidate. Democrats have little respect for personal rights, Republicans have none.

    Go ahead, GOP… Keep letting Ashcroft era cowards like Lindsey Graham speak for you and the country will continue to elect lying, self-serving George Bush clones like Obama.
    Ron and Rand Paul should be carrying your torch, not no-count clowns like Graham, McCain, Ryan, Romney etc…

    Yeah, respect his rights, give him a fair trial…. Then throw away the key and martyr the victims of this evil.

    • …and that neatly sums up whats wrong with the american view of the world. Citizens are worth more than non-citizens. Legally. Some humans are more equal than others. 

      • Antinous / Moderator says:

        That neatly sums up what’s wrong with the notion of ‘citizenship’. It’s been this way at least since ancient Rome.

  15. Petzl says:

    I couldn’t agree more with Dershowitz.  It is ridiculous that an American citizen who committed a crime on American soil in a time of peace can be called an “enemy combatant” and denied civil and Miranda rights.

    How many other terrorists and bombers were processed by the criminal justice system just fine?  (eg, Eric Rudolph, Ted Kaczynski, Tim McVeigh)  Republicans never seem to lose an opportunity to take the low road, even though there’s practically no doubt as to what the outcome of a conventional trial would be.

    • Jen Onymous says:


      If you ran out of Ipecac and really need to barf, go check out Rep Peter King (R) on the news tonight.  He actually came out with the moronic line that “the battlefield here was outside of the US,” therefore, the perp should be tried as an enemy combatant.

      In other words, if someone gets bad ideas from a visit overseas, and then acts on them in the US, you’re automatically a Foreign Combatant. 

      I hope they don’t outlaw mayonnaise on fries in the US; it’s a filthy un-American habit that I picked up in Belgium years ago. 

      Full story here:


      Now, of course, King is backpedaling, but the fact that an elected official sworn to uphold the law is even thinking this way is disgusting.

      As I said, there’s no harm that I DON’T wish on the suspect.  But it’s not my call to make.

      • ocschwar says:

        Peter King???? 

        As in Peter “I (heart) the IRA” King???

        That’s just beautiful.

        • Jen Onymous says:

           Yessirree Bob, THAT Peter King.

          FWIW, I went to Junior High School with the niece of one of the few priests to get sent to jail for gun-running for the IRA. He had a fair trial, and he really WAS directly helping a foreign terrorist organization.  Jus’ sayin.

  16. Scott says:

    Ken over at Popehat has some links showing why the Miranda issue is a bit less cut & dry than some suggest:

    Also, he should have every right any other American resident has (Please note that most of the rights given in the Constitution and Bill of Rights are for everyone in America, not just citizens).

    To suggest that our system of laws and governance cannot handle a situation such as the Boston bombing and other attacks would be suggesting our laws don’t work.  Of course it’s a shame that McVeigh and Kacynski got off scot free because we didn’t bend the constitution in the prosecution of them.  Oh wait.

    • asfd asfd says:

       Too often our laws DON’T work.  It’s because those in power care about power but they don’t give a shit about the laws they pass.  If our Congresswhores actually cared about law they wouldn’t keep exempting themselves from having to live under them.

  17. timquinn says:

    Oh brother, the law is all about where your rights stop. Why do you (all) think we have the term “Martial Law” and what do you suppose it means when it gets invoked? It means some of your rights are LEGALLY suspended. If the government wants to see your acts as acts of war then you have a different set of rights that will be enforced, later, maybe after you are dead. Emergency states are real and government actors can fuck you up if it is called for.

    • Jen Onymous says:


      Yes, but you can’t do it retroactively.

      There wasn’t martial law in Boston BEFORE the shit hit the fan.  You can’t cast the perp’s crimes in a different light after the fact.

      As much as I would like to see this piece of shit auctioned off one thimblefull of flesh at a time, on national TV, with the survivors doing the slicing with a rusty pull-tab, the law applies to all of us, not some of us.

      • timquinn says:

        Er, what I meant was, we know about how martial law works. There must be all sorts of shades of gray that allow law enforcement to protect the public safety. Convicting the guy is often not the first priority in such a case.

  18. LocomotiveBreath says:

    If they don’t read him Miranda then whatever he says can’t be used to convict him. He hasn’t lost any rights.

    • Rob says:

      As I stated above, I think you’re optimistic. It *shouldn’t* be used to convict.

      That’s a far cry from won’t. Of course, that’s even assuming he isn’t just detained indefinitely.

    • AwesomeRobot says:

      Well, they can also hold him and interrogate him without an attorney present. So there’s that right. 

    • peregrinus says:

      That is why a vocal segment want to annul his citizenship.  They wouldn’t try to cancel it, they’d say it was null from the start, thus he never had any rights under US law.

      We’d then be in some perpetual, inescapable meta-state of arguing whether his expectation to have the pertinent rights imbued him with some form of those rights, while they beat him with rubber hoses and waited for the next media event to cause him to be forgotten.

  19. Daneel says:

    Question; to what extent do constitutional rights extend to non-citizens? Permanent residents, temporary residents, non-residents?

    • Jen Onymous says:


      That’s actually its own whole body of law, IIRC from First-Year Civil Procedure Class.

      However, most of the “grey zone” stuff involves people here illegally CAUGHT TRYING TO ENTER ILLEGALLY (ie not in the US yet, technically, as they got “caught” coming in), people detained on US “consular soil” (ie on US property overseas), people committing crimes on US-run overseas properties (ie where local government has ceded legal control to the US), marine arrests, etc.

      Nothing, in other words, that would apply here in the least.

    • ffabian says:

      “to what extent do constitutional rights extend to non-citizens?”
      Interesting question. All the talk about “same rights as every American” makes me suspicious. In most western european democracies the fundamental principle of the rule of law is: “equal before the law”, citizen or not. There is no special ruleset (apart from immigration stuff) for non-citizens. If I, as a german citizen, would travel to France, murder someone there and got caught I would be tried and punished like every french citizen would. Is this different in the US? Am I, as a foreigner, “legal” fair game?

      • er0ck says:

         i believe anyone on american soil has the same rights (w/ regard to this conversation, unfortunately not to marry, etc).  there are exceptions in times of war, acts of war, martial law, etc, none of which, i believe apply here.

  20. AwesomeRobot says:

    Seems to me an American citizen should have the rights of every other American, but that’s just me. 

  21. Graceless says:

    Yes-sssss! Delicious-sss information, hissss! We mus-sssst extract it from the terroris-ssssst! Begin the enhans-sssst interrogation! 
    - Republican komodo dragon Lindsay Graham on Twitter

  22. Snowlark says:

    From the coverage I’ve seen and heard, Miranda rights can be suspended under the “public safety exception”, wherein the need to obtain information is critical to preventing any plausible further loss of life (in this case, finding out if Tsarnaev has planted any other bombs, has other accomplices which are still at-large, etc.).

    How this is relevant when the suspect is still in critical care with a tube down his throat, I haven’t a clue.

    President Obama got this ball rolling when he declared the bombing as an “act of terrorism”.  Apparently the executive branch’s definition of terrorism is based on the intent to terrorize, rather than actually inducing a sense of terror, to which most Bostonians would probably say f–k that noise.

    Obama also made this declaration without any indication that he knew who the perpetrators were.  And even if he did know that these were acts intended to terrorize, why give the perps such recognition, which they’ll only take as an honor?  If they really think Tsarnaev is their man, then charge him as a civilian (ya know, because he is one), charge him with murder, and pursue those charges in a criminal court of law.  Under those conditions, I doubt he’d retain any sense of accomplishment.

  23. bolamig says:

    Rights are figments of our dreams.  Nobody has an inherent right to a free lunch any more than they have a right to minimum wage or freedom of the press or even safe water to drink. 

    Rights exist only when someone with authority and resources decides to provide that thing.

    Sadly, the constitution no longer has the authority that it deserves, and our government is not devoting resources to maintaining the rights granted in it.  Hence the rights granted by it do not exist.  The people in power won’t defend rights to the death anymore; a one-in-a-hundred-million chance of death by terrorist is enough to get our government to pack up and give up the defense.


  24. ocschwar says:

    Amazing how much tough talk we’re hearing against a kid who is probably paralyzed for life, and is under guard and in chains. Oh, yeah, senator. You’re a big man, chipping at the rule of law to get at this menace. 

    Nice distraction from the important task of finding and prosecuting the people who supplied firearms to the Tsarnaev brothers. 

    • SomeGuyNamedMark says:

      Maybe he can order an investigation into the organization that helped these kids accumulate an arsenal, the NRA.

  25. Warren_Terra says:

    Of course we should give him all the legal rights we’re supposed to give any suspect (rights that, I will point out, are not supposed to be contingent on citizenship, immigration status, or even where they’re captured and held – although since Tsarnaev is an American citizen captured in Watertown MA we’re at least being spared the brayings of those who feel this shouldn’t be the case).

    This includes Mirandizing him.The Public Safety Exception is supposed to be for ticking-time-bomb situations. You capture someone, you need to ask them about other accomplices that might be on the loose, or other bombs whose counters are ticking down. The identity of the Tsarnaevs has been public for three days now; any accomplices will have fled or done whatever else they might wish to do, so there’s no special Public Safety merit in Tsarnaev rapidly identifying them. And we have no reason to think the Tsarnaevs left any bombs with a four or five day timer on them.

    Moreover, Tsarnaev has lived more than half his life in the US. He was bright (he got an academic scholarship out of Cambridge’s best public high school) and reportedly well socialized. He’ll have taken Civics, and he’ll have seen innumerable cop shows, complete with Mirandizing of the subjects (he may be too young to have seen all the criminal-defense shows that were so popular in the late 90s and early 00s, The Practice and such, that emphasized Miranda and shutting up until your lawyer gets there even more). If he’s alert and oriented, he knows his rights, and 15 seconds of an FBI officer repeating them won’t teach him anything new. But it will be an important statement about Due Process.

  26. Sean Breakey says:

    Here’s a crazy thought, treat him as a criminal.  Investigate and prove your case in open court.  Even if they don’t get him on the Boston Bombing, they did have him evading police while throwing pipe bombs out of his car.  It’s hard to imagine he’ll end up off the hook.

  27. Barrett Blackwood says:

    “If the Boston suspect has ties to overseas terror organizations he could be treasure trove of information.”
    Wow, does anybody honestly think that some Terrorist fan-boy is going to have any useful information? Somebody has been watching too many American movies. Even if the kid was a member of some organization the last thing they would do is divulge all their secrets to him. These people are professionals.

    • SomeGuyNamedMark says:

      If he is connected to some oh-so-sexy foreign organization then I say the Columbine and Newtown kids were working for SPECTRE.

      More likely he was dragged along by his older brother who seems to have been driven by something to go down this path.  What that was is going to be hard to find now that he is dead.

  28. Daemonworks says:

     The thing is the most disliked a person is the harder it is to get
    their rights respected. Even groups like the very poor and the mentally
    ill have their rights abused on a remarkably regular basis – but it’s
    mostly swept under the rug because few people are willing to stand up
    for them.

     When you get to accused (never mind convicted) criminals,
    especially in the really nasty high-profile cases, people attempting to ensure they be treated in accordance with the law may come under attack by those who are running on a mixture of hate and fear. Even basic rights of more typical prisoners are often abridged, side-stepped or outright trampled with some degree of immunity in the interest of expediency, cost-cutting or simply because they can get away with it.

  29. stevelaudig says:

    On the issue of rights…. there is only a right when there is a corresponding duty. Your right to be free from a physical assault corresponds to the duty of the others to not touch you without your consent. Of course, the naive point, is who enforces it. We are witnessing a collapse in the enforcement of duties and rights with no evidence of ‘re-enforcements’ coming. The uber-wealthy [and their enforcers] have separated themselves from the rest of the population of the US. so it goes.

  30. SomeGuyNamedMark says:

    “Should”?  Either he does or the Constitution (and hundreds of years of English law) are being thrown out for something resembling tribal revenge.

    If you think that is acceptable then remember these things always end up being aimed at you eventually.

  31. Jazzidiot says:

    Lindsey Graham was a JAG atty. He KNOWS the law. SHAME on you, Lindsey!

  32. peregrinus says:

    Did he get a qualified citizenship certificate?  Did it have a little agreement where if he broke the law he reverted to non-citizen status?
    I’m “guessing” no.

    Laws need to be knowable (big recent them here on BB with all the so-called copyrighted legal texts).  You cannot change a law retrospectively to fit circumstance without destroying the faith of the public in the ability of the legal system to protect them if something happens.

    He’s a nasty cur, but the USA granted him citizenship.  So if they strip his rights, start looking at your own crimes and misdemeanors, so much of which is recorded digitally now, and wonder if you’re ok.

    Easy example – what if porn was criminalised?

  33. Humbabella says:

    What rights should he have?  Well, since we’re having a discussion of what rights American citizens should have, might I suggest replacing the current criminal justice system – which is a fight between attorneys to rack up points rather than a search for the truth – with some form of restorative justice?  I think he should have a right to a healing circle, or some other kind of justice that would give him an opportunity to understand the harm and hurt caused by his actions, and to help in determining an appropriate reaction to that.

    Also, unrelated to the bombing, but a right to food would be helpful as well.

  34. lasermike026 says:

    DT’s rights has the the full guarantee of the Constitution of the Untied States of America.  Anything less and the justice system itself becomes invalid.

  35. They are xristians, and they are applying their usual and identity law: An eye for an eye, and a tooth for a tooth.

    They are like theirs fathers (athanasius, the crusaders, the fathers of protestantism, etc…) murderous and bloodshed people, with the mercy as a platonic idea.

    For those people, that is an act of justice and not the opposite, they are just acting as a good xristianoi/xristians doing so.

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