On April 15, 2013, Tamerlan and Dzhokhar Tsarnaev brutally murdered Krystle Campbell, 29, Lingzi Lu, 23, and Martin Richard, just 8, with shrapnel-filled bombs they left in backpacks at the finish line of the Boston Marathon. Three days later, they ambushed police officer Sean Collier, 27, and shot him dead in cold blood.
While Tamerlan was then killed in a shootout with police, this summer, the U.S. Court of Appeals for the 1st Circuit overturned the death sentence a Massachusetts federal jury quite rightly handed to Dzhokhar. The court reversed the decision to impose capital punishment primarily on the basis that the trial judge did not ascertain the degree and kind of information about the marathon bombing to which Tsarnaev’s jurors had been exposed.
The judges here included Republican and Democratic appointees, of broad experience and from a diversity of backgrounds; their lengthy and thoughtful opinion was graphic in its recitation of the horrors suffered by the victims at the hour of the deaths and sensitive to the great sufferings of all those harmed. And the Court of Appeals emphasized that while the trial court must redo Tsarnaev’s sentencing hearing, he will never leave prison any way but feet-first.
But Congress should act to make it easier to execute terrorists.
Terrorism is defined by U.S. law as the unlawful use of violence against persons “to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” That is what happened on Patriot’s Day in 2013: The Tsarnaevs used violence to attempt to intimidate Bostonians and thereby coerce the U.S. government.
The Tsarnaevs picked the wrong city, as shown by David Ortiz in a fiery speech at Fenway Park. But in a message Dzhokhar scrawled in blood in the boat where he was shot and captured, he stated, “Stop killing our innocent people, and we will stop. … I can’t stand to see such evil go unpunished.” He admitted to “killing innocent people.”
The entire purpose of terrorism is to kill civilians to make a government do, or not do, something. To this end, terrorists seek maximum publicity for their criminal acts of war: the Tsarnaevs by placing bombs where they knew there would be celebratory crowds and television cameras and al-Qaeda, 19 years ago, by flying hijacked planes into the tallest buildings in the media capital of the world, Manhattan.
It is therefore unjust and unreasonable for a terrorist such as Tsarnaev to complain that the jurors who tried him may have been exposed to derogatory information about him and his crimes. That was exactly the intended point of his attack: to create frightening images, to intimidate voters, and coerce our small-d democratic government into ending our just wars in the Middle East.
So, of course, every potential juror in Massachusetts knew all about Tsarnaev’s case, as would anyone in New England more broadly, or indeed the entire United States. That’s just what he wanted, and the same would hold true for the trial of any Sept. 11 conspirator. A rule that makes good sense in an ordinary homicide trial, where jurors have ideally never heard of the victim or the accused, makes little sense in a terrorism case involving a mass-casualty attack.
Tsarnaev’s argument is reminiscent of the old lawyers’ axiom about a boy who kills his parents and then seeks mercy on the grounds that he’s an orphan. He is in a fix of his own making.
The problem here is amenable to a statutory fix, because the 1st Circuit based its decision not upon Tsarnaev’s constitutional rights, but rather only on the supervisory authority of courts of appeal over trial courts and the recommended best practices of the American Bar Association.
Congress should act to amend U.S. terrorism statutes and the Federal Rules of Criminal Procedure to state that in a capital proceeding related to, for example, the use of a weapon of mass destruction resulting in death, it is not necessary to strike a juror on the basis of their exposure to information about the defendant or his alleged crimes.
While such an ex post facto legislative tweak cannot be applied retroactively to the 2013 Boston Marathon bombing, it can help speed other terrorists to their deserved grim fates.
Unbelievably, despite having key plotters in American custody since early 2002, our military’s commissions system embarrassingly has still not even tried, much less executed, anyone responsible for Sept. 11. Justice, where it has been done, came via drones and special operators. As John Wayne’s character said in The Green Berets, “Out here, due process is a bullet.” That works fine in South Asia, thank goodness, but not as well in federal district court.
In contrast, our Justice Department has an outstanding track record of convicting many terrorists since Sept. 11. But the DOJ has not executed one since the Oklahoma City bomber Timothy McVeigh was put down in 2001. The death penalty has its modern critics, yet it can be a positive good, especially in terrorism cases.
Both a murder victim and our society deserve closure and justice after any homicide. But beyond the gruesome nature and vast human toll of their crimes, terrorist prisoners are also especially apt to attack corrections officers, continue plotting behind bars, and attempt to escape. Terrorist organizations may seek to take hostages in an attempt to secure their members’ release.
St. Thomas Aquinas put it best: “The life of certain pestiferous men is an impediment to the common good which is the concord of human society. Therefore, certain men must be removed by death from the society of men.” Indeed, they ought to be. We should amend laws to make it easier to kill, with due process, terrorists of the future.
Kevin Carroll served as a senior counselor to the secretary of Homeland Security and chairman of the House Homeland Security Committee, a law clerk to a US district judge, and a CIA and Army officer in the war on terror. Kevin is a contributor to the Washington Examiner’s Beltway Confidential blog.
