Via the Examiner, they’ve hit him with just two counts thus far, one of which is conspiracy to use a weapon of mass destruction (i.e. an IED) against persons or property in the U.S., but that’s enough for a death sentence if the DOJ chooses to seek it. I sense some anger on the right that the feds aren’t treating him as an “enemy combatant,” but I think that has more to do with the condemnatory power of that term than the legal consequences flowing from it. Terrorism is qualitatively different from common crime in its political motivation and so people want Tsarnaev to be treated qualitatively differently by the justice system. That’s also what drives much of the objections to Mirandizing terrorists, I think: It’s not that Miranda will matter hugely in determining whether he talks, it’s that by Mirandizing him you’re treating him like a common criminal rather than a man who’s declared war on the United States. (Tsarnaev’s motive is still unknown but we all know which way the arrow’s pointing given his dead brother’s radicalism.) I’m more of a bottom-line guy on this sort of thing, though. Is there any chance that he’ll end up going free because the feds aren’t treating him as an EC? Nah. Given the video/photo evidence against him, at worst this guy’s going to prison forever. At best he’s getting the needle. Here’s a glimpse at the evidence against him from the complaint, which is posted at Legal Insurrection:
They’ve also got the carjacking victim set to testify against him — and I recommend reading the full complaint for more on him, to see what he had to endure. The bombers did, allegedly, tell him right up front that they were the people who blew up the marathon, and according to the feds, the victim did indeed escape. He wasn’t “let go,” which, as noted this morning, would have been an insane gesture of magnanimity by the two most wanted men in America.
But as I was saying, I don’t think EC status matters (much). They can’t try him at a military tribunal regardless because he’s a U.S. citizen; even Lindsey Graham acknowledged that on Fox News this morning. They’re not sparing him their toughest interrogators just because he’s not an EC: The High-Value Detainee Interrogation Team will be grilling him. Arguably, they shouldn’t even be allowed to consider designating him an EC unless/until they prove that he’s part of a group that “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” per the 2001 AUMF. Their best weapon in getting him to share intel is the death sentence hanging over his head, which doesn’t depend on EC status. If he wants to live — and it sure seemed like he did on Friday — then it’s time to talk.
Here’s Carney sounding very grand indeed about handling terrorists in federal court. Exit quotation:
White House Announces Periodic Gesture Towards Respecting Constitutional Norms When Doing So Is Costless And Reasonably Popular
— Popehat (@Popehat) April 22, 2013
Update: For what it’s worth:
JUST IN: A trusted federal source says Dzhokhar Tsarnaev is being cooperative with investigators.
— ABC World News (@ABCWorldNews) April 22, 2013