As
a law student, the events which have transpired surrounding the arrest of the
accused Boston bomber Dzhokhar Tsarnaev and the subsequent societal reaction
has intrigued me. In writing this post, I want to comment on the legal
dimension of this case and the ideas which I have pertaining to that.
In
law, there is an assumption that any individual is presumed to be innocent of
the charges laid against them until rendered guilty in a court of law. This is
evidenced by the 5th amendment in the United States Constitution as
well as section 11 of the Canadian Charter of Rights and Freedoms. Throughout
my legal education, the presumption of innocence has been stressed upon
immensely because it offers an accused individual the ability to clear their
name against state allegations. Looking at the mainstream media, one cannot be
blamed for thinking that Tsarnaev has already been found guilty of the crimes
which he is alleged to have committed. As a society, we must refrain from
mentally convicting someone before they have been afforded due process and had
their day in court.
Another
issue which has been raised is that fact that the suspect will not be read his
Miranda rights prior to being questioning by the authorities. While there
exists no concept of Miranda rights in Canada, American legal jurisprudence
requires that an accused is informed of certain rights before they are
questioned. These rights include the right of the accused to remain silent, the
right of the accused to retain legal representation and the fact that anything
said by the suspect will be used against them in criminal proceedings. These
rights are codified in the 5th amendment of the American
constitution and protect an individual from self-incrimination. The only exception to the Miranda provisions
is if there is reasonable concern for public safety because an individual may
opt to remain silent. In this case, I do not see any reasonable reason to fear
for the safety of the public. The suspect has been apprehended and there does
not seem to be any reason to worry that there are additional lives at stake.
Thus, I believe that the government is overstepping the boundaries drafted in
our Constitution
Finally,
there is talk of Tsarnaev being tried as an enemy combatant. The legal term “enemy
combatant” receives its legal derivation from The Law of Wars. In essence,
making a person an enemy combatant strips them of the majority of their rights
including the right to retain legal counsel and the right to remain silent. However,
this talk ought to be treated as speculation of politicians who are totally
ignorant of the law. There is no feasible way for an American citizen who
committed a domestic crime in an American city to be tried under the Law of
Wars. There is no alleged involvement of a state in which the United States is
at war with nor is there any evidence of terrorism related affiliations. This
case ought to be treated in the same manner as any other murder case in dealt
with in our courts.
To
conclude, I reflect upon the legacy and impact of the American constitution.
While many people may have issues with the government of America and the
foreign policy it espouses, the United States constitution is a grand document
which calls to high legal ideals. It is incredibly protective of civil
liberties and incredibly intolerant towards government aggressions against
citizens. These high ideals should not be brushed aside for expedience sake.
Our founding fathers who were faced with perils that we could scarcely imagine;
drafted a charter to assure the rule of law and the rights of man. This charter
was strengthened by the sacrifices of generations. The continued disregard for
it by the government ought to be taken as worrying. While no one may have
sympathy for Tsarnaev, staying silent in the face of them will only allow the government
to become bolder with their abuse of civil liberties. Remember, one day it
could be you…..
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