Editorial: President or terror suspect, the rule of law applies

Editorial: President or terror suspect, the rule of law applies

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The impulse is understandable, but put away the waterboard. (Boston Herald photo)

The tough thing about the United States Constitution is that it contains no asterisks.

You can read through all 4,543 words in the original document, plus the 27 amendments, and never find an out clause. You want to change something — even something as awful as slavery — you have to go through the tortuous process of amending it.

When there’s confusion about how something should be applied, the Supreme Court gets to decide. If the Court gets it wrong, as it sometimes does (Dred Scott, Plessy v. Ferguson, Citizens United, D.C. v. Heller) you have to wait a decade or so and try again with a different set of justices.

This is called the rule of law. Frustrating as it sometimes is, it is the glory of the nations that follow it. Kings and dictators don’t decide. People like Vladimir Putin, who does things in places like Chechnya without regard for the rule of law (or their impact on screwed-up kids in Boston), don’t decide. Your feelings don’t decide. “Lex, Rex,” as they say in Latin. The law is king.

The rise of international terrorism creates fear, which creates the urge to bypass the rule of law. Similar fears caused Franklin Roosevelt to intern Japanese-Americans during World War II.

Fear of terrorism caused President George W. Bush’s administration to create Abu Ghraib, Guantanamo, enhanced interrogation, warrantless wiretapping and denial of habeas corpus rights. Fear of terrorism has caused President Barack Obama’s administration to run an unaccountable death-by-drone program and mislead Americans about what is being done in their names.

And over the weekend, fear of terrorism caused senior members of the United States Congress to suggest that the 19-year-old U.S. citizen accused in the Boston Marathon bombings be declared an “enemy combatant” and tried by a military court.

Cooler heads must prevail. The rule of law must prevail.

Over the weekend, federal investigators — with the blessing of Attorney General Eric Holder — apparently invoked the “public safety exception” to the Supreme Court’s 1966 ruling in Miranda v. Arizona by questioning Dzhokhar Tsarnaev in his Boston hospital room. The Court in 1984, in New York v. Quarles, had carved out the exception in cases where suspects might have knowledge of an imminent threat. On Monday, a federal magistrate, with public defenders present, visited the hospital room, read him his rights and formally arraigned Mr. Tsarnaev on charges related to the bombing.

It was not unreasonable, given the events of last week, for investigators to wonder about more bombs and guns. The law had created the Quarles exception. Civil libertarians might disagree with it, and it could create legal problems down the road, but the rule of law was applied.

The rule of law won a bigger victory when Mr. Holder chose to file his case in federal court. Over the weekend, he’d gotten plenty of advice from senior Republican lawmakers — including Sens. John McCain of Arizona, Lindsey Graham of South Carolina and Rep. Peter King of New York. They wanted Mr. Tsarnaev tried as an “enemy combatant” by a military court.

This would have been a grievous blow to the rule of law, and possibly to the outcome of the case. The organization Human Rights First reports that since the events of 9/11, federal prosecutors have won nearly 500 convictions in terrorism-related cases. Military prosecutors have won seven.

Terrorism is a crime. At home, it should be treated as such, regardless of the religious beliefs of the suspects.

But in hunting down terrorists abroad, the Obama administration has followed the Bush administration’s lead and treated it as combined warfare-intelligence operation. The CIA and the Air Force compete to be the go-to agency for death by drones.

Bureaucratic imperatives like jobs and budgets may be becoming too important. Jonathan Landay of McClatchy Newspapers reported this month that the government’s own records indicate that drone killings are far more extensive than Mr. Obama, Mr. Holder and other administration officials have admitted.

The administration has said that only “senior operational” leaders of al-Qaida or its affiliates who pose an “imminent threat” to the United States are targeted. If the suspects happen to be American citizens, “due process” rights don’t necessarily mean judicial due process rights.

Of the 482 people estimated to have been killed by CIA drone strikes between September 2010 and September 2012, 265 were “assessed” as unknown extremists, foreign fighters or “other militants.”

Were they senior operation leaders? Not usually, records show. They may have been just flunkies. Evidence that they were planning imminent attacks? Not much, either. Rule of law? Hey, it’s war.

Mr. Obama owes the nation the truth. If this killing is as random as it appears to be, the drones may create more terrorists than they eliminate. We don’t need any more terrorists.

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