The System Is Working

I find that I'm turning these days to lawfareblog.com, an interesting blog about law and national security written by three noted legal eagles, which has been nicely on top of the legal situation post-Boston. You should check it out.

For example, here, the blog summarizes the federal charges brought against Jahar (can I just call him that, by common consent? So much easier to type). This weapons of mass destruction charge seems kind of odd, but it turns out that the relevant federal law, dating to 1986, defines almost any bomb as a WMD.

The blog also notes that Tsarnaev (which I kind like typing) was Mirandized at his bedside. He now has a lawyer. So the system is churning along. Even Glenn Greenwald declared himself (in a tweet) more or less satisfied with the way things have gone so far. Lawfare's Bobby Chesney:

So, what happens next on the interrogation issue?

It is certainly possible he will cooperate. Indeed, it is possible that this will be counsel’s advice, given how overwhelming the evidence is against him. If it works out that way, so much the better.

It is also possible that he will not cooperate. In that case, the million dollar question becomes whether the government would attempt to conduct interrogations notwithstanding an invocation of the right to remain silent or a request not to be questioned absent the presence of an attorney. One hopes it need not come to this. If it does, there will be fierce criticism whichever path the government takes (and, presumably, much litigation if the government does attempt an intelligence-focused interrogation without counsel).

As Chesney suggests, it would seem to me he'd want to talk, and that a lawyer would encourage him to do so, since there's so much evidence against him. For example, if this speculation that his older brother radicalized him and turned him bad is anywhere near true, wouldn't he want to explain all that in open court? It's his only remote shot at a little sympathy.

All of which makes me wonder why Lindsey Graham and his cohort were so afraid the guy would clam up. But there's a lot not to understand about them, starting with the fact that the Supreme Court has ruled that US citizens declared enemy combatants are still entitled to all their due process rights. Bravo to Eric Holder. He did the right thing here.

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Michael TomaskySpecial Correspondent

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