Trying Dzhokhar Tsarnaev

It seems clear that Dzhokhar Tsarnaev exploded bombs at the Boston Marathon. Although some wanted him tried as an enemy combatant outside of the requirements of the Constitution, the Obama Administration has brought charges in the federal courts.

It’s fascinating how some Americans treat our Constitution. On the one hand, many people make a fetish about what the Founders thought and did in the eighteenth century, and on the other many, often the same people, argue that the Constitution is simply irrelevant, doesn’t apply, can safely be ignored or forgotten.

Let’s get past that one quickly. Although the evidence so far does not fit the definition, the Constitution has a very clear notion of what to call Americans who adhere to our enemies – “traitors.” And the Constitution specifies how to try traitors – in court with at least two witnesses to the treasonous acts. The Founders were careful because they understood that charges of treason had often been misused. Throughout the Constitution and the Bill of Rights, the Founders carefully built in protections so that we could be as sure as possible that the right people were convicted. They didn’t get careless when the crime was heinous and the stakes large. The larger the stakes, the more careful they were. Our Founders behaved like statesmen.

It took years before the U.S. Supreme Court managed to decide that the people imprisoned on Guantanamo were entitled to a decent opportunity to clear themselves of the charges against them. Sad that should be such a difficult issue in what we call “the land of the free.” And it turns out that there are a number of people who should never have been there, people the government eventually realized were not guilty of fighting us and should never have been detained. But because the Bush Administration made a fetish over being “tough,” it treated them so badly that they may well be dangerous now. Because the Bush Administraton couldn’t imagine living up to our international obligations, it refused to treat the men as prisoners of war, the better to hold them in the kind of conditions we deplored when done to our soldiers, and to make clear the hypocrisy of an American Administration that cried about rights and freedom but honored neither.

Some of us repeatedly swore our loyalty to the Constitution, and don’t think the Constitution is a fair weather document, good only when the sky is blue and we feel like basking in its sunny glow, but excess baggage when the sky darkens and our mood changes.

Some of us believed that we advanced the cause of freedom by binding ourselves together with other countries to honor human rights and liberties the world over, and standing up for those same values at home. But some of us apparently believe that freedom means you can do whatever you want to whomever you want without paying attention to the protections carefully put in place by the Founding Fathers we claim to honor. Perhaps those are the real traitors.

The current Administration, by charging Tsarnaev in federal court, stood by the legal system our Founders bequeathed us. It stands for the principles of a free society, and showcases faith in our own Constitution.

— This commentary was broadcast on WAMC Northeast Report, May 7, 2013.

The Gay Marriage Cases

Sunday night, my wife and I attended a Persian Nowruz or New Year’s festival, with many friends. We celebrated the best and happiest of the traditions they had left behind, along with other Americans who had come to take part. While celebrating the rebirth of Spring, we were also celebrating freedom with friends who had become refugees, whose humanity and efforts to use their skills to help others had become unwelcome to Iranian authorities.

Last night we celebrated freedom with another group of friends, this time in a Passover Seder at our home. We were all Americans by birth but we remembered the importance of freedom to the ancient Israelites and to the many different groups who have struggled for freedom in our own lifetimes.

On both evenings some of the conversation turned to what was going to happen in the cases dealing with the rights of gays and lesbians in front of the U.S. Supreme Court this week.

Assassination by presidential decree – disclosure needed

David McCraw, vice-president of the New York Times and a graduate of Albany Law, has been involved in a lawsuit for documents showing how the Administration decided which Americans to assassinate who were on foreign soil but not in war zones. United States District Judge Colleen MacMahon decided that the government did not have “to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States.”

But she added, “The Alice-in-Wonderland nature of this pronouncement is not lost on me” and she called it “a veritable Catch-22.”

Supreme Court Protects Prosecutorial Misconduct That Threatens the Innocent

As you think about whom you’ll vote for, let me tell you about two decisions of the Roberts Court where the Court sprang to the defense of prosecutors whose denials of constitutional protections had put innocent men in prison for decades.

What’s Wrong with Spying?

The AP recently revealed a spying operation by the New York City police on Muslims and Muslim institutions. What should we think about that?

Due process & targeted assassination

Tasked with helping draft a constitution for India after World War II, B. N. Rau traveled abroad speaking to jurists. In Washington, Supreme Court Justice Frankfurter advised Rau not to include a due process clause in the Indian Constitution. Instead India should have a clause simply requiring that no one be charged with a crime but by the law of the land. That was the meaning of the Magna Carta in 1215 which said:

 No freemen shall be taken or imprisoned … or in any way destroyed … except by the lawful judgment of his peers or by the law of the land.

 That meant Parliamentary supremacy. Whatever crimes and procedures the legislature defined were kosher. But there was no check on the legislature.