Boston Manhunt Challenges Constitutional Principles

It was with great relief when the manhunt and apprehension for Dzhokhar Tsarnaev brought one chapter of the Boston Marathon bombing to a conclusion – even as that manhunt raised important legal, constitutional questions.   Friday was obviously a terrifying experience for the citizens of Boston and especially Watertown –  it was a surreal and disturbing event even for a distant viewer glued to the television as I was that day.

Almost immediately, the overwhelming presence of heavily attired swat teams with assault weapons, armored tanks with machine guns, Blackhawk helicopters circling, and empty neighborhood streets created a frightening futuristic vision of a police state with civilians locked inside.  Not to minimize the injuries and trauma inflicted by the dastardly deed, the simultaneous explosion of a fertilizer plant in Texas killed and injured more people and did considerably more damage but what was happening on the streets of Boston, the cradle of the American Revolution, was the equivalent of martial law with precedent-setting warrantless house to house searches by heavily armed civil law enforcement tactical teams that had morphed into a military presence.

The Fourth Amendment was adopted to protect Americans privacy from ‘unreasonable search and seizures’ from an intrusive government but allows access ‘upon probable cause’.  Obviously in this situation of ‘extraordinary circumstances’, Bostonians cannot be faulted for opening their doors with little hesitation but here’s the conundrum:  did law enforcement believe that a wounded 19 year old was sufficiently dangerous and that a reasonable threat existed to demand entry in what can only be considered a gross violation of the 4^th Amendment?

Given the challenge to Constitutional principles, the public interest would benefit from straightforward answers to the following:              

Was Attorney General Holder consulted and was there a house-to-house search game-plan already in place?  Was there any suggestion that a knock on the door might have been sufficient?   Was the possibility that Bostonians had the option to resist armed entry ever considered?  What was the deliberative process and who made the final decision to conduct a house-to-house search? What consideration was given to establishing a dangerous Constitutional precedent?

While many Americans appear blissfully unaware of the Fourth Amendment, if the Bill of Rights is allowed to continue to erode as it has since 911, the fragile state of our democracy as well as the quality of life for all Americans will continue to rapidly diminish  - even as a majority of the public fails to recognize the threat from within.

By late afternoon on Friday, MSNBC’s Alex Witt and Michael Isikoff were reporting that the FBI had interviewed Tamerlan at least once in 2011 and that his application for citizenship had been stalled by Homeland Security based on that interview.   The FBI has since responded that the result of their interview “did not find any terrorism activity, domestic or foreign.”   However  the distraught mother of the Tsarnaev brothers has claimed that the FBI  made repeated visits to Tamerlan.   She told RT News that  “..he was controlled by FBI for 3-5 years.  They knew what my son was doing, they knew what actions, what sites on the internet he was going. They used to come home, come  talk to me…they were telling me that he was really a serious leader and  they are afraid of him.  They told me whatever country, whatever information he is getting, they are controlling him.” 

As the New York Times revealed in 2012,  FBI agents have  been known to pose as terrorists, provide necessary resources to conduct  illegal activities and then ‘entrap’ those people enticed into committing acts of ‘terrorism’.  Hopefully, the ACLU or Center for Constitutional Rights will file a Freedom of Information request for the FBI’s entire file on their contact with Tamerlan Tsarvnaev.

During law enforcement’s press conference immediately after the capture of the younger brother who had eluded a massive dragnet for almost 24 hours, US Attorney Carmen Ortiz announced that the suspect would not be read his Miranda rights and that a ‘public safety exemption’ would be invoked.   While the special exemption dates back to 1984, according to the FBI’s Law Enforcement Bulletin, the Supreme Court interpreted that “the exemption would be triggered …. to protect the police or public from immediate danger.”  The exemption has not been widely used until the Obama Administration secretly expanded its authority in 2011. 

While on one hand, U.S. Attorney Carmen Ortiz was announcing at the Friday night press conference that the ‘public safety’ exemption would be invoked yet on the other offered the assurance that no immediate threat existed stating that "Tonight we feel a tremendous sense of gratitude and relief." "Tonight we can sleep a little bit easier.”

The Sunday morning news show Reliable Sources included a lengthy hashing out of numerous media missteps that occurred on the day of the manhunt  - misstatements that were understandable since the media were precluded by law enforcement from their role of providing the public with immediate, on-the-scene reporting.  During the early part of that day, CNN’s Chris Cuomo announced the unsettling news that the media had been asked to not ‘interfere’ with law enforcement efforts.  

Viewers watched as reporters and photographers were pushed into a ‘safe zone’ out of the ‘line of fire” as the national networks filled time with an array of expert commentators.  Cuomo went on to inform the public that CNN was airing on a five second delay and would only broadcast feeds that ‘police are comfortable with.”  Presumably, Fox and NBC followed suit. The net effect of an almost total media blackout left reporters dependent on law enforcement for vital information, compromising the public’s right to know.   While the word censorship was never uttered, Cuomo explained that “we don’t know what we can’t control.’   Videos that have surfaced of the Thursday morning shootout and the capture of the suspect on Friday evening were taken by neighbors who live in the area. 

Part of the TV coverage on Friday included persistent questioning about why this heartbreaking tragedy had occurred, conjecture on the motive and whether the Tsarnaev brothers were lone wolves or part of a larger conspiracy.  One after another authority speculated about what could have radicalized either brother  - was it al qaeda, could it have been an inability to integrate into American society or perhaps they were just a couple of evil, wicked terrorists who hated America and certainly Tamerlan’s visit last year to Chechnya was proof-positive.  

Perhaps the most credible and informed commentator was Phillip Mudd, former Deputy Director of the CIA’s Office of Counterterrorism Analysis who responded to the Why question that “they believe the US is intervening in places where they shouldn’t be intervening, raping women and killing children.” Mudd  later suggested that the bombing was ‘very basic’ and that these are ‘not the guys I watched for twenty years.”  On Fareed Zakaria’s Global Public Square on Sunday, Mudd, now a senior research fellow with the Counterterrorism Initiative at the New America Foundation, said that the attack was more reminiscent of Columbine than al Qaeda since the brothers failed to obscure their faces, had no after-action plan and that he saw no evidence to hold Dzhokhar as an ‘enemy combatant.”

By Monday evening, after Defendant Tsarnaev was questioned by the FBI, he was informed of his Miranda right to remain silent, a Public Defender was appointed and it was announced that he will be prosecuted through the civil legal system.