The official U.S. Government criminal complaint

[IlarMeilyr]

United States of America v. Dzhokhar Tsarnaev | The Weekly Standard

Although I still maintain that this ought to NOT be brought as a criminal justice "case," it appears to proceeding on that basis.

The charges are: "Use of a Weapon of Mass Destruction" and "Malicious Destruction of Property Resulting in Death."

 

[Connery]

United States of America v. Dzhokhar Tsarnaev | The Weekly Standard

Although I still maintain that this ought to NOT be brought as a criminal justice "case," it appears to proceeding on that basis.

The charges are: "Use of a Weapon of Mass Destruction" and "Malicious Destruction of Property Resulting in Death."

It must, US citizens cannot be brought before a military tribunal. "...since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists."

Carney noted that the federal courts have been used as the venues for the prosecution of Faisal Shahzad, the Pakistani-American citizen in the failed May 2010 Times Square car bombing, and of Umar Farouk Abdulmutallab, the Nigerian man known as the "underwear bomber" who tried to blow up a Detroit-bound flight on Christmas Day 2009."
Suspect charged in Boston bombing case

 

[CaféAuLait]

Since I'm no attorney, the feds get the first crack, and then Mass can charge him too for charges which may not have been covered in these charges? Is that how it works?

 

[IlarMeilyr]

United States of America v. Dzhokhar Tsarnaev | The Weekly Standard

Although I still maintain that this ought to NOT be brought as a criminal justice "case," it appears to proceeding on that basis.

The charges are: "Use of a Weapon of Mass Destruction" and "Malicious Destruction of Property Resulting in Death."

It must, US citizens cannot be brought before a military tribunal. "...since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists."

Carney noted that the federal courts have been used as the venues for the prosecution of Faisal Shahzad, the Pakistani-American citizen in the failed May 2010 Times Square car bombing, and of Umar Farouk Abdulmutallab, the Nigerian man known as the "underwear bomber" who tried to blow up a Detroit-bound flight on Christmas Day 2009."
Suspect charged in Boston bombing case

Wrong. There is no valid reason why an American citizen could not be brought before a military tribunal.

And nobody is disputing that have used the Courts to prosecute terrorists.

That's not the question.

The question is whether we ought to be doing so.

The answer is "no."

 

[AmyNation]

It's agaisnt the law to try American citizens in a military commission.

 

[IlarMeilyr]

It's agaisnt the law to try American citizens in a military commission.

I don't think so.

What support might you have for that broad claim?

Military commissions have been used throughout U.S. history to prosecute violators of the laws of war. “Since our nation’s earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war. They have been called our common law war courts.”
Madsen v. Kinsella, 343 U.S. 341, 346-47 (1952). Military commissions have tried offenders drawn from the ranks of aliens and citizens alike charged with war crimes arising as early as the Revolutionary War, the Mexican-American War, and the Civil War, and as recently as World War II. See Quirin, 317 U.S. at 32 n.10, 42 n.14.

http://www.gwu.edu/~nsarchiv/torturingdemocracy/documents/20011106.pdf

The Quirin Court thus repeatedly emphasized that citizenship would not protect a
person “from the consequences of a belligerency which is unlawful.” Id. at 37; see also
id. (“Citizens who associate themselves with the military arm of the enemy government” are properly subject to trial by military commission). Citizens who engaged in belligerent acts, thus, could be tried by military commission. See also Colepaugh v. Looney
, 235 F.2d 429, 432 (10th Cir. 1956) (“[T]he petitioner’s citizenship in the United States does not divest the Commission of jurisdiction over him, or confer upon him any constitutional rights not accorded any other belligerent under the laws of war.”). To explain the limitations on Milligan, two scenarios merit consideration here: (1) the use of military commissions to try U.S. citizens seized in the United States, and (2) the use of military commissions to try enemy aliens seized in the United States.

--Id at p. 14

 

[AmyNation]

The 09 MCA specifically states there is no jurisdiction over US citizens. Even Lindsey Graham who helped write the '09 revision and wants the bomber labled an enemy combatant says there's no question, the man cannot be tried in a military commission.

Federal Probation Journal: June 2011 -: Prosecution by Military Commission versus Federal Criminal Court: A Comparative Analysis

 

[IlarMeilyr]

The 09 MCA specifically states there is no jurisdiction over US citizens. Even Lindsey Graham who helped write the '09 revision and wants the bomber labled an enemy combatant says there's no question, the man cannot be tried in a military commission.

Federal Probation Journal: June 2011 -: Prosecution by Military Commission versus Federal Criminal Court: A Comparative Analysis

You are referencing the Military Commissions Act which, by its own terms, deals with aliens.

That is not evidence that the United States has any law prohibiting the use of a military tribunal as against an illegal combatant CITIZEN which appears to be the claim you made.

 

[AmyNation]

In order to qualify for a military commission, you have to be a non-citizen.

 

[IlarMeilyr]

In order to qualify for a military commission, you have to be a non-citizen.

Under the MCA, that's true.

How is that proof that the President is not authorized to create one for U.S. citizens, much like President Washington did and President Franklin Roosevelt did?

 

[yidnar]

United States of America v. Dzhokhar Tsarnaev | The Weekly Standard

Although I still maintain that this ought to NOT be brought as a criminal justice "case," it appears to proceeding on that basis.

The charges are: "Use of a Weapon of Mass Destruction" and "Malicious Destruction of Property Resulting in Death."

It must, US citizens cannot be brought before a military tribunal. "...since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists."

Carney noted that the federal courts have been used as the venues for the prosecution of Faisal Shahzad, the Pakistani-American citizen in the failed May 2010 Times Square car bombing, and of Umar Farouk Abdulmutallab, the Nigerian man known as the "underwear bomber" who tried to blow up a Detroit-bound flight on Christmas Day 2009."
Suspect charged in Boston bombing case

Wrong. There is no valid reason why an American citizen could not be brought before a military tribunal.

And nobody is disputing that have used the Courts to prosecute terrorists.

That's not the question.

The question is whether we ought to be doing so.

The answer is "no."

i have a question.....shouldn't the no good bastard be charged with treason also ??

 

[AmyNation]

Ohhh, I see what you're saying. That's true, I suppose Obama could. He won't, and I don't see the benefits of it vs allowing the bomber to go through the American justice system though.

 

[IlarMeilyr]

It must, US citizens cannot be brought before a military tribunal. "...since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists."

Carney noted that the federal courts have been used as the venues for the prosecution of Faisal Shahzad, the Pakistani-American citizen in the failed May 2010 Times Square car bombing, and of Umar Farouk Abdulmutallab, the Nigerian man known as the "underwear bomber" who tried to blow up a Detroit-bound flight on Christmas Day 2009."
Suspect charged in Boston bombing case

Wrong. There is no valid reason why an American citizen could not be brought before a military tribunal.

And nobody is disputing that have used the Courts to prosecute terrorists.

That's not the question.

The question is whether we ought to be doing so.

The answer is "no."

i have a question.....shouldn't the no good bastard be charged with treason also ??

If we subscribe to the notion that an illegal combatant is deserving of being treated as an accused (mere) "criminal" under our criminal justice system, then that would be one of the available charges. As would murder, assault, etc.

 

[asaratis]

It must, US citizens cannot be brought before a military tribunal. "...since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists."

Carney noted that the federal courts have been used as the venues for the prosecution of Faisal Shahzad, the Pakistani-American citizen in the failed May 2010 Times Square car bombing, and of Umar Farouk Abdulmutallab, the Nigerian man known as the "underwear bomber" who tried to blow up a Detroit-bound flight on Christmas Day 2009."
Suspect charged in Boston bombing case

Wrong. There is no valid reason why an American citizen could not be brought before a military tribunal.

And nobody is disputing that have used the Courts to prosecute terrorists.

That's not the question.

The question is whether we ought to be doing so.

The answer is "no."

i have a question.....shouldn't the no good bastard be charged with treason also ??

If we can execute him for the charges brought against him, it won't make any difference what else we charge him with.

 

[IlarMeilyr]

Ohhh, I see what you're saying. That's true, I suppose Obama could. He won't, and I don't see the benefits of it vs allowing the bomber to go through the American justice system though.

Ok. That's a much richer vein for discussion.

The benefits include NOT having to provide the "defendant" with "discovery" which could (depending on the case) force the government to reveal HOW it obtains some intel.

I see zero value in educating our opponents in a war against terrorists.

I see great value in denying the enemy any intel.

Similarly, if we insist that this matter is JUST a criminal case (as opposed to an act or acts of war), then it may very well be true that the "defendant" is "entitled" to Miranda warnings. We treat him differently (and intentionally so) not just on the possible pain of not being able to use his statements as evidence against him at trial, but at the risk that he might be able to craft an appeals argument (after conviction) that he was denied equal protection of the law and denied a "fair" trial if we find that we cannot give him some discovery, etc.

And let's be real. Alhough it is a long shot, this is the American system of law we are talking about. That means that there is a true possibility that some jury could acquit him no matter how fucking guilty he is. For our mere criminals (like rapists and murderers and robbers and car thieves, etc) that's a risk we are more than willing to face every day.

But if some U.S. citizen active terrorist member of al qaeda (this example doesn't necessarily involve Tsarnaev) has done something along the lines of what Tsarnaev did, possibly with radiological dirty bombs, etc., what the fuck are we supposed to do if he is nevertheless found "not guilty?" Are we actually prepared to return such a piece of shit to the amorphous battlefield? Should we be?

There is so much wrong with treating illegal combatant citizens as mere criminals and using our justice courts as the vehicles to go after them, it is potentially suicidal to willingly CHOOSE that option.

It was FINE and dandy, legally, in the Quirin case, to use a military tribunal against U.S. citizen combatants. The history does go all the way back to George Washington.

But now? Somehow, for reasons that don't make any damn actual sense, the "rules" they are a-changin'.

The trouble is, they shouldn't be.

 

[IlarMeilyr]

Wrong. There is no valid reason why an American citizen could not be brought before a military tribunal.

And nobody is disputing that have used the Courts to prosecute terrorists.

That's not the question.

The question is whether we ought to be doing so.

The answer is "no."

i have a question.....shouldn't the no good bastard be charged with treason also ??

If we can execute him for the charges brought against him, it won't make any difference what else we charge him with.

It will be a cold day in hell when THIS regime approves the use of the deth penalty for a conviction" of terrorism, etc.

Granted, this President does see it as permissible to issue some kind of order to snuff a U.S. citizen/enemy combatant overseas. But that's not done in public. To authorize the legal "execution" of any convicted "criminal defendant" is something which would require President Obama to break ranks with the liberals on the whole topic of the death penalty.

I may be mistaken, but I don't see it happening.

 

[yidnar]

Wrong. There is no valid reason why an American citizen could not be brought before a military tribunal.

And nobody is disputing that have used the Courts to prosecute terrorists.

That's not the question.

The question is whether we ought to be doing so.

The answer is "no."

i have a question.....shouldn't the no good bastard be charged with treason also ??

If we subscribe to the notion that an illegal combatant is deserving of being treated as an accused (mere) "criminal" under our criminal justice system, then that would be one of the available charges. As would murder, assault, etc.

would the military be allowed to question or try him on Treason charges ??

 

[IlarMeilyr]

i have a question.....shouldn't the no good bastard be charged with treason also ??

If we subscribe to the notion that an illegal combatant is deserving of being treated as an accused (mere) "criminal" under our criminal justice system, then that would be one of the available charges. As would murder, assault, etc.

would the military be allowed to question or try him on Treason charges ??

If the "military" isn't the forum for his "commission" hearing, but only the courts of law are, then I doubt the military would get permission to be involved.

If the military were allowed to question him when the charge is treason, then why couldn't they question him when the charge is "use of a WMD?"

 

[Connery]

United States of America v. Dzhokhar Tsarnaev | The Weekly Standard

Although I still maintain that this ought to NOT be brought as a criminal justice "case," it appears to proceeding on that basis.

The charges are: "Use of a Weapon of Mass Destruction" and "Malicious Destruction of Property Resulting in Death."

It must, US citizens cannot be brought before a military tribunal. "...since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists."

Carney noted that the federal courts have been used as the venues for the prosecution of Faisal Shahzad, the Pakistani-American citizen in the failed May 2010 Times Square car bombing, and of Umar Farouk Abdulmutallab, the Nigerian man known as the "underwear bomber" who tried to blow up a Detroit-bound flight on Christmas Day 2009."
Suspect charged in Boston bombing case

Wrong. There is no valid reason why an American citizen could not be brought before a military tribunal.

And nobody is disputing that have used the Courts to prosecute terrorists.

That's not the question.

The question is whether we ought to be doing so.

The answer is "no."

The follows denotes the jurisdiction of the Military Commission.

"10 USC Chapter 47A, Subchapter I - GENERAL PROVISIONS

10 USC § 948a - Definitions

(1) Alien.— The term “alien” means an individual who is not a citizen of the United States.

10 USC § 948b - Military commissions generally

(a) Purpose.— This chapter establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission.

10 USC 948c - Persons subject to military commissions:

Any alien unprivileged enemy belligerent is subject to trial by military commission as set forth in this chapter."

10 USC § 948d - Jurisdiction of military commissions

A military commission under this chapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), or the law of war, whether such offense was committed before, on, or after September 11, 2001, and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized under this chapter. A military commission is a competent tribunal to make a finding sufficient for jurisdiction."

10 USC Chapter 47A, Subchapter I - GENERAL PROVISIONS | Title 10 - Armed Forces | U.S. Code | LII / Legal Information Institute

The Military Commission does not have jurisdiction over the person in this instance. Tsarnaev is an American citizen arrested on American soil, this was the right decision.

 

[AmyNation]

Ohhh, I see what you're saying. That's true, I suppose Obama could. He won't, and I don't see the benefits of it vs allowing the bomber to go through the American justice system though.

Ok. That's a much richer vein for discussion.

The benefits include NOT having to provide the "defendant" with "discovery" which could (depending on the case) force the government to reveal HOW it obtains some intel.

I see zero value in educating our opponents in a war against terrorists.

I see great value in denying the enemy any intel.

Similarly, if we insist that this matter is JUST a criminal case (as opposed to an act or acts of war), then it may very well be true that the "defendant" is "entitled" to Miranda warnings. We treat him differently (and intentionally so) not just on the possible pain of not being able to use his statements as evidence against him at trial, but at the risk that he might be able to craft an appeals argument (after conviction) that he was denied equal protection of the law and denied a "fair" trial if we find that we cannot give him some discovery, etc.

And let's be real. Alhough it is a long shot, this is the American system of law we are talking about. That means that there is a true possibility that some jury could acquit him no matter how fucking guilty he is. For our mere criminals (like rapists and murderers and robbers and car thieves, etc) that's a risk we are more than willing to face every day.

But if some U.S. citizen active terrorist member of al qaeda (this example doesn't necessarily involve Tsarnaev) has done something along the lines of what Tsarnaev did, possibly with radiological dirty bombs, etc., what the fuck are we supposed to do if he is nevertheless found "not guilty?" Are we actually prepared to return such a piece of shit to the amorphous battlefield? Should we be?

There is so much wrong with treating illegal combatant citizens as mere criminals and using our justice courts as the vehicles to go after them, it is potentially suicidal to willingly CHOOSE that option.

It was FINE and dandy, legally, in the Quirin case, to use a military tribunal against U.S. citizen combatants. The history does go all the way back to George Washington.

But now? Somehow, for reasons that don't make any damn actual sense, the "rules" they are a-changin'.

The trouble is, they shouldn't be.

It seems your running under the assumption he is part of a larger organization. At this point, I'm not sure if that's the case. If possible, but not a fact.

It has already been decided the defendent is not entitled to Miranda rights, because of the public safty exception, so you can set that worry aside.

I can understand your fear that somehow in some way he will be found not guilty( though I can't see that happening( but just because it might happen is no reason to insist we throw out our judicial process. Many people have done horrible things, killed far more people then this man, and were put on trial like every other American and I'm sure the victims families worried over justice as well.

Tossing our laws, or rewriting them just so this man can be tried in a mitary commission is the worst message we can send to anyone. We don't need to give those who hate is ammo, or make this kid a martyr to some cause.

Try him like every other dirt bag and let the world watch how justice works in America.