Tsarnaev: What would Washington have done?
George Washington was ruthless.
As commander in chief of the Continental Army, Washington was prepared to crush those who attacked American liberty. He set up military commissions to swiftly hang enemies. He sparked an international incident when he ordered the execution of a random teenage prisoner. He even justified torture. But he reserved his ferocity for foreign enemy combatants.
Following the firestorm of last week’s Boston bombing and the ensuing violent manhunt, we are trying to find our bearings. We need to aggressively extract information, identify additional threats and hunt down any accomplices, whether foreign or homegrown. Yet we must remain careful not to slide toward an Orwellian state – where Big Brother runs roughshod over local authorities, monitors Americans without probable cause, restrains the movements of innocent civilians or rains drone missiles on U.S. soil.
Consider his response to Benedict Arnold. Most everyone knows about Arnold and his treacherous attempt to sell West Point to the British in 1780. However, many people forget that he had two accomplices – a young British soldier, John Andre, and an American co-conspirator, Loyalist Joshua Hett Smith. Washington’s differing treatment of these men reveals an important distinction between the rights of foreign nationals versus citizens.
Washington captured Andre first. He made short work of the young Brit: Andre was speedily brought before a military commission and hanged within days. Washington believed foreign enemy combatants had little to no rights, as he ferociously defended his people.
The same, however, was not true for American citizens, no matter how detested.
As the infamous plot unraveled, American forces were dispatched to arrest – rather than execute – Smith. He was indeed roughed up a bit: taken on a forced 18-mile march and denied sleep and food the day after he was captured. Washington, seething, even declared his intention to hang Smith “on yonder tree.”
We can all empathize with this desire for vengeance. But Washington’s prudence overcame his passion. As soon as it was clear that the plot was no longer active, Smith was quickly provided with the due process protections as set up by Congress.
Washington knew the immediate plot had gone cold the evening after he interrogated Smith, and by analogy, President Barack Obama’s “public safety exception” was getting overextended. Washington’s men treated Smith as an American and “advised [him] … to speak little, and cautiously, to any person who might ask [him] questions,” the night after his interrogation. Federal agents did not provide analogous rights to suspected Boston Marathon bomber Dzhokhar Tsarnaev until a judge intervened almost three days after his capture.
Like it or not, Tsarnaev is a U.S. citizen. This may raise many questions about intelligence lapses and our immigration system, but according to the founders’ understanding of our Constitution, that citizenship is a ticket to due process. The need to extract intelligence information from Tsarnaev is significant, and our military and intelligence agencies should be allowed to question him freely – just as Washington initially questioned Smith to ensure that the military danger had abated. But without Miranda warnings, whatever is said in those interviews should not be admissible at trial, because that would violate Tsarnaev’s constitutional due process rights, which we are bound to uphold because he is a U.S. citizen. We want a conviction ‑ but we want it to be ironclad.
We all would like to see Tsarnaev brought to justice – possibly even hanged “on yonder tree” – but we need to follow proper legal procedures. By denying him the protections of the law, we set dangerous precedents that threaten all Americans’ rights. We destroy the very liberties that Washington and the founders fought to protect.
Washington refused to allow emergency to erode Americans’ liberties. “Crisis is the rallying cry of the tyrant,” James Madison wrote, and Washington was no tyrant. He would not permit homegrown crises to undermine the ideals for which he fought.
We have conquered these problems before – fiercely defending ourselves without losing sight of our own liberties. We did so by following Washington’s leadership. These precedents are still used by our Supreme Court in defining our Constitution today.
It is a good thing for the nation that Washington kept such meticulous notes.
PHOTO (Top): Print of General George Washington and his generals by Alexander Hay Ritchie. Courtesy of Library of Congress
PHOTO (Insert A): Benedict Arnold REUTERS/Courtesy of Library of Congress
PHOTO (Insert B): Dzhokhar Tsarnaev, 19, suspect #2 in the Boston Marathon explosion is pictured in this undated FBI handout photo. REUTERS/FBI/Handout