Give Me Liberty: The Constitution in an Age of Terror

Benjamin Franklin has long warned Americans that “any society that would give up a little liberty to gain a little security will deserve neither and lose both.” His warning has been invoked throughout American history, as it has been in light of recent events. Yet it seems decidedly powerless in a country that so readily passed the USA PATRIOT Act and similar legislation when terror struck unexpectedly from afar on September 11th. Indeed, as recently as 2011, the Pew Research Center found that 42 percent of Americans believed the PATRIOT Act was a “necessary tool” to combat terrorism while just 34 percent felt it posed a “threat to civil liberties.”[1]

In the aftermath of this year’s heinous bombing of the 117th Boston Marathon, the drive for greater security again threatens American liberty. Not the liberty of an entire nation, as after the events of 9/11, but of a single young man: Dzhokhar Tsarnaev, the 19-year-old Cambridge resident charged in the attack. Americans rallied to #prayforboston and stay “Boston Strong” in the hours after the bombing, but two weeks out, a new chorus has spread from Copley Square to Capitol Hill: that a man who would shatter American security does not deserve the protections of its liberty.

Four days after the marathon, Dzhokhar was apprehended by city, state, and federal authorities just miles north of Boston. He answered their questions for sixteen hours the following day, falling silent only when a magistrate judge and a representative of the U.S. Attorney’s office arrived at his hospital bed. The magistrate had read him his Miranda warning, informing him nearly a day late that he had the right to remain silent — and that anything he did say could be used against him a court of law.[2] By this point, reports suggest he had already admitted his and his brother Tamerlan’s guilt, blaming American actions abroad as motivation for the attack.[3][4]

In the eyes of House Intelligence Committee Chairman Mike Rogers (R-Michigan), reading Dzhokhar his rights was judicial activism of the worst kind. “We can’t have, in a case like this, the judiciary deciding… that they were going to somehow intercede in this,” he said, demanding the Justice Department explain its actions.[5] Other Republican lawmakers, including Speaker of the House John Boehner (R-Ohio), have echoed such sentiments.[6] Some officials and citizens have even called for Dzhokhar to be labeled an “enemy combatant” and brought before military rather than civilian court, despite there being no evidence that he himself had ties to al-Qaeda, the Taliban, or any other overseas radical group.[7]

Why afford such a man any of the protections enshrined in the U.S. Constitution? Because Dzhokhar Tsarnaev, radical and suspected terrorist, is an American citizen. Like all Americans, he supposedly enjoys the Fifth Amendment protection against self-incrimination and the Sixth Amendment right to “a speedy and public trial.” And the Eighth Amendment prohibition against “cruel and unusual punishment,” though that hasn’t stopped pundits and political figures from suggesting authorities torture him for more information.[8] Others have asked if his actions justify searches, seizures, and wiretaps of Americans mosques seemingly in violation of the Fourth Amendment.

To some, it is only natural that Americans rethink key tenants of the Constitution in times of crisis. New York City Mayor Michael Bloomberg warned that the country’s interpretation of the document would “have to change” to prevent future attacks.[9] “We live in a complex world” he reasoned, a world in which suspected terrorists should apparently be subject to a set of rules different from those drawn up in Philadelphia.

Make no mistake, Dzhokhar and his brother Tamerlan stand accused of a truly monstrous crime. If convicted, the younger suspect will spend the rest of his life in federal prison. Even so, it may be a short stay should prosecutors seek the death penalty. As a society, Americans should expect no less for a man who killed 3 innocent bystanders and injured nearly 200 others.[10] But the death penalty and life imprisonment are punishments meted out by a constitutional system of justice. Americans cannot ask that someone be exempted from that system’s process and protection while demanding they bear its consequence.

Perhaps it’s all to be expected. The PATRIOT Act exists largely in abstraction, and Dzhokhar Tsarnaev was until 2012 a foreigner with an unfamiliar name and a misunderstood religion.[11] It is easy to dismiss or even encourage the violation of another’s civil liberties, particularly when they have violated the sacred trust of citizenship. In such cases, it may be unwise to heed the wisdom of Franklin’s warning. It may be impossible. That is supposedly why America’s constitution exists at all, to safeguard the promise of liberty against the emotional impulse to trade it all for peace of mind.

Long before the Red Scare or 9/11, Americans were better than this. “Give me liberty or give me death!” they cried, proud and defiant. How quickly they themselves have betrayed that great legacy. If terror stems from hatred of American freedoms and democratic way of life, why do Americans time and again trade those very attributes in the pursuit of safety? “That’s how the terrorists win,” some might say. Indeed, it would appear they already have.

Daniel Shea
Political Science and Economics, ‘14



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