Considering the baby-faced bomber
Sometimes a picture speaks volumes. Sometimes it's outright deceptive. The picture of "Bomber No. 2" didn't look a bit like a mass murderer. A sweet-faced college kid, the former lifeguard, the nice young man described by classmates and friends. It couldn't be. There must be some outside organization calling the shots. An international conspiracy, perhaps. Brainwashing.
Or maybe it was just a deceptive picture of a cold-blooded murderer.
He and his brother put bombs next to children.
One of those children was murdered.
In a court of law, innocence is presumed. That is a rule of law, not a finding of fact. For those of us who watched, watched over and over, the proof appears to be nothing less than overwhelming. Others may have been involved. Further investigation is absolutely required.
But I for one have no doubt that the defendant is not a baby-faced college student, that he is no one's victim, that he is responsible for heinous crimes. Responsibility is not an exacting standard in criminal law. Did he know what he was doing? Did he understand that there was a bomb in that backpack, and that bombs kill people and terrorize cities? Whatever other pressures may have been at work, however influenced he was by religion or his brother or anyone else, if he knew what he was doing, if he understood the nature of his conduct, that is enough to make him responsible.
But that does not make him an enemy combatant.
The calls by politicians to treat him as one, led by Sen. Lindsey Graham, a lawyer who should know better, demonstrate the triumph of politics over law. According to Graham, speaking on the Senate floor, Dzhokhar Tsarnaev's "ties to radical Islamic thought" and his Chechen heritage should justify holding him as an "enemy combatant" subject to trial by a military tribunal.
Ties to "radical Islamic thought" do not make a person an enemy combatant.
Ties to thought are, in fact, at the core of the protection afforded by the First Amendment. Actions are another matter. But there is absolutely no evidence that this man was a member of al-Qaida or the Taliban, or that his acts were directed by foreign enemies. He is an American citizen who (allegedly) killed innocent people and would have (absent the brilliance of the Boston hospital trauma system) killed many more -- on American soil using devices made in America.
Indeed, even Graham acknowledges this. He just wants him to be treated as an enemy combatant until proved otherwise. Nothing in the law or the Constitution supports this. It is totally unnecessary.
The evidence against Tsarnaev is overwhelming. He wouldn't need to say a word to government authorities to be convicted in an American court. The only consequence of not giving him Miranda rights is that his statements might not be admissible in a criminal trial, which, frankly, won't matter. Anyone who thinks a Boston jury will be unduly sympathetic (unlike military officers) is just plain wrong.
Indeed, for my money, military officers -- who are more accustomed to seeing death on the fields of battle than the rest of us are to seeing destruction and devastation in Copley Square -- might have an easier time focusing solely on the evidence admitted at trial.
In our ridiculously polarized media and political culture, we have a tendency to see everything in extremes, which means that more often than not we're wrong.
Dzhokhar Tsarnaev is not a baby-faced innocent, even if that is how he looks in the pictures that flashed on the screen every minute. He placed a bomb in the middle of hundreds of innocent people, children included.
He is also not an enemy combatant by any definition, nor do we need to treat him as one in order to ensure that justice is done.
Susan Estrich is a columnist, commentator and law and political science professor at USC.