Eric Rudolph, the anti-abortion bigot behind the 1996 Atlanta bombing, was tried as a criminal. What makes Boston different?
When is a violent attacker a terrorist, an enemy combatant or a criminal? To some hawkish Republicans, the answer appears to depend more on a suspect's religion than his actions or affiliations.
Dzhokhar Tsarnaev, the younger of the Boston bombers, is the latest example. In allegedly carrying out the bombing at the Boston marathon, Tsarnaev and his older brother appear to have acted alone. At time of writing, there is no suggestion that they were affiliated with any terrorist cell or organization, let alone the army of a foreign nation. The motives behind the bombing remain unclear, but even if the surviving Tsarnaev does go on to justify the attack with religion or anti-Americanism, that doesn't meet even the intentionally loose, disturbingly Orwellian definition of "enemy combatant" outlined post-9/11 by the Bush administration.
Given these facts, the White House made the common sense (and legally tenable) decision to try Tsarnaev in criminal court as a civilian. But some Republican legislators aren't content with using our justice system – they want Tsarnaev to be designated an "enemy combatant", against all the available evidence.
Senator Lindsey Graham, for example, recognizes that Tsarnaev couldn't reasonably be tried by a military tribunal, but says the administration should deem him an enemy combatant nonetheless, for intelligence-gathering purposes. To clarify Senator Graham's point: he's advocating against the basic constitutional protections that the United States affords individuals accused of crimes. Doing so displays not just a disturbing level of cynicism and bigotry, but a shameful lack of respect for the American justice system and the US constitution.
Our criminal justice system is vastly imperfect. We incarcerate more people than any nation in the history of the world, and we dole out sentences that are longer and harsher than they would be in many other countries. We've privatized the building of prisons, incentivizing more incarcerations. Our solitary confinement practices and our collective refusal to do anything about prison rape often means that incarceration crosses the line into torture.
But there are bright spots – at least, in the legal foundations of what can be a very broken system – and chief among them are our protections of the rights of the accused. It can be frustrating when there's a mountain of evidence indicating that the accused did something terrible, as there is in the Boston marathon bombings, and we want fast and easy justice. But protections for the accused are what maintains balance in our legal system, and what allows us to instil our collective faith in it.
That means investigations may take longer and getting convictions may be more difficult. But that's a strength, not a weakness – a system that prioritizes quick and easy convictions is not often particularly just. A system that prioritizes a just and exhaustive process earns credibility and gains the confidence of the citizens it serves.
Our country's choice to take the lengthier but fairer path should be a point of pride.
Our political leaders, of all people, should champion the fact that American courts are fully able to fairly try individuals accused of even the worst crimes, up to and including acts of terrorism. They should champion the idea that our constitutional protections are so valuable and so fundamental to American justice that we extend them even to the worst of criminals, up to and including terrorists.
Under both George W Bush and Barack Obama, many of our political leaders have failed on that point, as enemy combatant status has been used to hold foreign nationals indefinitely without trial. To see lawmakers attempt to score political points by suggesting that the rights of US citizens accused of perpetrating domestic attacks should be set aside if the bad guy is really bad is disturbing and disheartening.
It's also disturbing to see how rightwing legislators define "really bad". The Tsarnaev brothers are hardly the first accused of being domestic criminals who have killed and maimed innocent bystanders in an ideologically or religiously motivated attack (assuming, even, that the Tsarnaevs acted as charged because of some broader ideology and not just because they were two angry young men with homemade bombs). Over the past few decades, thousands of acts of religiously and ideologically motivated violence have been carried out against US citizens by individuals associated with organizations that promote the use of violence to achieve their social and political goals.
Since the late 1970s, these groups have carried out eight murders, 17 attempted murders, 41 bombings, 175 arsons, 100 butyric acid attacks, 663 anthrax and bioterrorism threats, four kidnappings, 178 burglaries and 191 acts of assault and battery. At least one of them even targeted a major sporting event, setting off a bomb at the 1996 Atlanta Olympics that killed one person and injured 111 others – an attack that has now been frequently compared with the Boston Marathon bombing.
But these terrorists are pro-life Christians. And typically, their attacks target abortion clinics (pdf). So there has never even been a debate about their constitutional rights.
Nor should there be, even though I find their views and actions odious. Rightwing terrorists deserve to be Mirandized, effectively represented and considered innocent until proven guilty – just like any other accused criminal. I do have to wonder what's wrong with a movement that accepts admitted terrorists back into its fold, as the anti-abortion folks did with Cheryl Sullenger, a woman who served two years in federal prison after pleading guilty to conspiring to bomb an abortion clinic. Sullenger now works as the senior policy adviser of an anti-abortion organization. But that's the "pro-life" movement's prerogative, and its particular morality.
The American criminal justice system has proven time and again that it is fully capable of trying domestic terrorists. There's little difference between the acts allegedly carried out by the Boston Marathon bombers and those committed by Eric Rudolph, the rightwing Olympic Park bomber. It's only the religion of the bombers that seems to be motivating the very different political responses.
Does any reasonable person think we'd even be having this conversation about enemy combatant status if the Boston bombers had gone to church every Sunday or were members of a rightwing militia? Allowing the religious beliefs of the accused to sway our legal treatment of them is bigoted, deeply unjust and contrary to what we so often profess are basic American values.
Terrorism works only insofar as it terrorizes – if it instils a fear that changes our behaviors, limits our ability to live normally and chips away at our most valued institutions. "Letting the terrorists win" is a tired cliche, and I don't imagine that if we compromise our ideals and treat accused domestic terrorists as a special class to whom we afford only limited criminal defendants' rights, Dzhokhar Tsarnaev or Eric Rudolph or Khalid Sheikh Mohammed will claim victory.
But if we do follow Senator Graham's lead and agree it's acceptable to cut constitutional corners for certain kinds of bad guys, we will have ceded the integrity of our legal system, our sense of justice and our principles. Then, all of us will lose.