How Terrorists Test the U.S. and Israeli Legal Systems

Unlike terrorist suspects in Israel, the Boston bomber has the basic rights of a criminal defendant; he may seek a highly-publicized execution, or martyrdom, but the targeting of so many civilians will mean it will be hard for the Attorney-General to avoid seeking the death penalty.

Israelis are watching with a sense of deja vu as America tries to balance the fair trial rights of an accused terrorist against the government’s need to obtain real-time intelligence in order to prevent future attacks.

This is a problem that Israel is faced with repeatedly, but our legal systems are significantly different. Israel has devised (really, borrowed, from Britain) a system of administrative detention which empowers the government to hold suspected terrorists without according them the basic rights of a criminal defendant. American law has no such exception, unless the defendant is designated an enemy combatant. Various politicians have argued that Dzhokhar Tsarnaev should be so designated, but the Obama Administration has categorically refused to do so.

So the case will go forward as a federal criminal prosecution. There may also be a state prosecution for the murder of the MIT police officer several days after the bombing, because this crime does not necessarily qualify as a terrorist act.

The State of Massachusetts has abolished the death penalty, as Israel has done, but the federal government maintains it for terrorist murders.

In order to secure the death penalty, prosecutors will not only have to prove that the defendant committed the requisite criminal act, but also that he did so with a requisite criminal intent. The evidence of such an intent may well come from the interrogation now being conducted with the defendant, who is apparently providing written answers to oral questions. He may also be nodding and providing some oral responses. But the defendant has apparently not been given his Miranda warnings. The government has invoked the "public safety" exception to the Miranda rule, despite repeated assurances by police officials that there is no public safety emergency at this time.

It is possible therefore that the courts may exclude any answers given before he received his Miranda warnings. This may endanger the government's efforts to secure the death penalty.

It is unlikely that this will end up as a traditional criminal trial, with the defendant denying that he committed the criminal act and the prosecution needing to prove beyond a reasonable doubt that he did. More likely there will either be a plea bargain or a jihadist-type defense in which the defendant boasts that he did it and seeks to justify his murderous actions.

He may also actively seek to have the death penalty imposed on him so that he can become a martyr and serve as an inspiration for others who seek a terrorist’s paradise. If this is the case, then seeking the death penalty may backfire and play into his hands. Life imprisonment in an obscure cell away from the glare of publicity may well serve as a stronger deterrent than a highly-publicized execution. But it will be difficult for the Attorney General not to seek the death penalty in this case where so many civilians were targeted.

Dzhokhar Tsarnaev has now been formally charged with a federal crime carrying the death penalty. This does not necessarily mean that the Attorney General will seek that extreme punishment against a 19 year-old who may well have been under the influence of his older brother. His innocent-looking face and his exemplary prior record may persuade some jurors not to impose the death penalty, but when they see the video of him apparently planting his lethal backpack near innocent children, they may well see him in a less positive light.

If he wants to live, his best chance is to try to exchange real-time intelligence information for his life. It is unclear whether he has any such information or whether the government would be prepared to make a deal with him.

If he chooses to go to trial, and tries to put forward a conventional defense—such as coercion and/or brainwashing—the trial will almost certainly have to be moved out of Boston to another city in the State of Massachusetts. People in and around Boston simply have too much a stake in this case to administer justice both with the reality and the appearance of fairness.

Terrorism tests every legal system. Israel has generally passed these tests, though not always perfectly. There is every reason to believe that the United States, too, will pass its tests, if it remains committed to the rule of law.

Alan M. Dershowitz, the Felix Frankfurter Professor of Law at Harvard, is a practicing criminal and constitutional lawyer and the author, most recently, of The Trials of Zion.

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