When the Devil Turns Round…
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
US CONSTITUTION, Article III
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…
US CONSTITUTION, Amendment Five
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
US CONSTITUTION, Amendment Six
An American citizen, Dzhokhar Tsarnaev, on American soil, commits a myriad of state and federal crimes, including at least four counts of murder, hundreds of extremely aggravated assaults, and probably a score or more of other heinous acts. He faces a possible death sentence. At a minimum he faces multiple life sentences in maximum security prison.
United States Senators, like virtually every other government office holders – state and federal – take an oath to uphold the Constitution:
I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
Neither of the Constitutional Amendments – nor the oath – provide for any exceptions to the duties mandated (except for war in Amendment Five). There is no exception in Amendment Six for acts the President, or Congress choose to call “terrorist acts”. There is no language in the Constitution providing for suspension of any of the rights granted to the people other than times of open rebellion.
In the 1866 case Ex Parte Milligan, 71 US 2, the Supreme Court ruled – unanimously – that the suspension of habeas corpus was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating. In essence, the Court ruled that military tribunals could not try civilians in areas where civil courts were open, even when the military had been authorized to detain individuals without trial. It observed further that during the suspension of the writ of habeas corpus, citizens may be only held without charges, not tried, and certainly not executed by military tribunals; the writ of habeas corpus is not the right itself but merely the ability to issue orders demanding the right’s enforcement. (Wikipedia)
No crime is more detrimental to the nation than treason. However, the Constitution not only doesn’t reduce the rights of a defendant charged with treason but requires a higher standard of proof:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
US Constitution, Article III, Section 3
Even during and after World War II Americans charged with treason were entitled to a jury trial. During World War II – when the very existence of our nation was threatened by Germany and Japan – no federal court ruled that American citizens acting on American soil could be summarily stripped of the Constitutional rights by executive fiat.
Last week at least two Senators demanded that Dzhokhar Tsarnaev be denied the Constitutional rights set out above and that he be tried by a military tribunal. He should be denied the due process – including the most sacred, the right to trial by jury – afforded to every criminal defendant simply because his crimes are called “terrorist acts”.
Lindsey Graham and John McCain have violated their oaths to the Constitution. It’s not a close question. There is no legal precedent denying a citizen charged with crime – including treason – due process protection and the right to indictment and trial by jury. Graham and McCain are willing to surrender the heart of the Bill of Rights to the dubious argument that stripping terrorists of basic Constitutional rights will, somehow, Make America Safer.
Dzhokhar Tsarnaev’s crimes did grievous harm to the people of Boston and hundreds of participants in the Boston Marathon. If convicted, he should face the full measure of the law. Boston will recover, however, and its citizens wounds will, in time, heal.
If Graham, McCain and their supporters have their way, the entire country will suffer grievous harm. Our nation’s very foundation – its heart of liberty – the Constitution, will suffer an enduring wound. Once opened, from that wound the blood of freedom may bleed away.