By Mary W Maxwell, PhD, LLB
Everything about the Boston Marathon case has been thrown into disarray by the new affidavit and amicus curiae filed by Maret Tsarnaeva, paternal aunt of the deceased Tamerlan and the incarcerated Dzhokar (nickname: Jahar). And I do mean filed, not just “sent in the mail.” A Minnesota lawyer, who lives in Quebec, gave guidance to Maret’s pro se filing. He is John Remington Graham.
There are four grounds on which the story of the Boston Marathon bombing is suddenly all-new. Which of the four would you like to discuss today, the most profoundly constitutional one, or the fantastic human-interest shocker? Oh rapture, I knew you would want to hear about the parchment above all, since it is, for Americans, our lifeblood.
The matter concerns jurisdiction. If a fellow decides to act like a terrorist (I’ll grant that “terrorism” is a bit of an amorphous term, but we don’t have time to wax philosophical about every word in the language here), and if he chooses to so act in one of the 50 states, who has jurisdiction to try that person for the crime?
Or, to make it more complicated, if he did his terrorist thing while standing on the Vermont-New Hampshire border, literally with one foot in each state, who would have jurisdiction over the crime?
That’s the kind of question that invariably appeared on our exams in Law School, alerting the student to recall that if the crime was federal (“commonwealth,” where I did my law degree, in Australia) no state had the jurisdiction.
The Federal Crime Myth
Hmm. A federal crime in America? There are only a few crimes specified in the US Constitution. Two of them, treason and counterfeiting, would seem to be crimes against the nation. Another crime mentioned is piracy. In that case, the point may have been, back in 1787, that the pirate is not supervised by any country; thus, if we wish to grab him we had better declare the right to do that, in our Constitution.
But terrorism? How did that get to be a federal crime? Oh, I see, Congress made it a crime. Did that happen in the wake of 9-11? No. It came in during the Clinton years, in 1996. However, after 2001 there was a UN Security Council Resolution that “required” nations to pass laws that criminalized terrorist acts and called for controls over finances of persons that a nation designated as a terrorist. Here’s an example of that. Resolution 1373, Paragraph 1 (c) requires States to:
“Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts … of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities….”
We all understand, do we not, that the United States is never “required” to take up the suggestions of a body such as the UN? Sure, the nations that “deposited a signature,” as the US did in 1945, became parties to that treaty. Per the US Constitution, Article VI, a treaty is the law of the land. Still, it’s a bit of a stretch to say that if, later, a UN Security Council decides something, the sovereign nations have to obey.
Sorry, that was an aside. The fact is, Congress did pass anti-terrorism laws. So whether or not they were suggested by the UN, they are now creatures of the US legislature. But are they constitutional? I say no.
I say Article I, section 8 of the Con is clear. It declares what Congress has the power to do. For example, it has the power to build postal roads. Or to raise an army, Or to coin money. Nothing about criminalizing any behavior, no matter how egregious. And if Congress does not have a certain power, it remains as a power of the people or of the states. Thank you.
The states are perfectly capable of doing the policing of their people. What if all the states felt unable to do it and held a meeting at which the 50 governors invited the feds to take over certain jobs, would that be legal? Go to the back of the class and don your cone-shaped cap if you said yes.
So then, are Americans forever stuck in 1787, prevented from making laws that reflect modern things like terrorist airplanes? No they are not stuck. The people can always amend the Constitution.
Boston Marathon Bombing
As I have said on previous occasions (and ad nauseam in my 2011 book, Prosecution for Treason), if an American attacks America, the relevant Constitutional punishment is found in Article III, section 3. Let’s read it aloud: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
This seems to cover an event such as the Marathon bombing.
The miscreant, or should I say the alleged traitor, can be charged with treason. Who would do the charging? Article II of the Constitution sets out the role of the executive and there we find, in section 3, that “He shall take Care that the laws be faithfully executed.”
How to do that? At the moment, the method is to delegate the responsibility to the Office of the Attorney General. The 1787 Constitution, with all of its 22 amendments up to the year 1992, has nothing to say about that arrangement. I’m guessing that the handful of “federal crimes” in the Constitution call for only a small apparatus for enforcement.
The present set-up seems legitimate. The AG (or his underlings in the Department of Justice) can write a warrant for the arrest of the alleged traitor. The AG can then ask the police (state police, of course, there being no federal police) to effect his capture. Note: the same could be done in regard to the crime of counterfeiting.
Whence the Origin of the “FBI Police”? Did It Come from under a Cabbage Patch?
At present (because Americans have ceased to be good custodians of their precious parchment), there are thousands of federal employees who go to work every day bearing arms. In the case of a worker in Fisheries and Wildlife Department (the constitutionality of which I will pass over here, as we are trying to get to the point about Aunt Maret’s filing), may need arms in case he is threatened by, say, a lion.
But, as I said, the states exclusively hold the police power. As for the rather amazing blossoming of the “FBI police” in our generation, this is in no way legitimate. I, being a member of the parchment police, can state unequivocally, that the Federal Bureau of Investigation was imbued by Congress with a power to “investigate” and nothing more.
That an FBI agent has no power to arrest has long been recognized in the legal literature. If she has to make an arrest (and normally she wouldn’t, there being umpteen state police who could do it), she is allowed to make a citizen’s arrest. Yes. Every one of the innumerable arrests that has ever been carried out by an FBI employee has been a citizen’s arrest.
Perhaps I should make an exception for the FBI employees who get deputized by a state police unit to act for them, but then, those FBI employees are not making arrests as FBI employees but as state-police-officers-for-a-day as it were.
The Tsarnaev Case
Maret Tsarnaeva is an attorney from Russia, who completed a Master of Laws in Canada. She is no slouch. She can read the FBI or other secret services better than most Americans, since she has known the unpleasant experience of living under a tyranny. Americans, by contrast, cannot recognize a tyranny when it is staring them in the face.
She has filed an affidavit with the US Federal District Court in Boston. I doubt that she is the author of it. Her helpful lawyer, who is obviously a member of the parchment police — Oh, would that there were many more of those! — found several things she could present to the Court in hopes of saving her 20-year-old nephew, Jahar Tsarnaev. Only one of them has to do with the constitutionality of “federal crime.”
Here she, or her lawyer, has cited the extremely important 1995 case of Lopez v US. I learned about that case from my Australian law teacher Greg Taylor, who has written as good a report of it as you will find anywhere. Long story short, a 12th grader named Lopez carried a gun to school and was arrested, and later convicted, for being in breach of a Congressional law.
The amazing thing is that the US Supreme Court upheld his acquittal. It did so by ruling that Congress had overstepped its powers when it enacted a law that said guns could not be carried in a school zone. I mean the Supremes did as God intended; they protected the balance of powers in the Constitution.
How did Congress ever have the chutzpah to pass that school-gun law, I hear you ask. Ah, I’m glad you brought that up. They did it by opening the door to let the cat in, but let in a herd of antelope instead. I am referring to Article I, section 8, Clause 3 “Congress shall have power to regulate Commerce with foreign Nations, and among the several States…..”
All of us who have our marbles know that the Framers in 1787 wrote the “commerce clause” so that there would be a federal power to prevent, say, Virginia from frustrating the commerce of, say, Maryland. They wanted the US to have a national economy. Hence it is cricket for Congress to legislate anything relevant to that.
But in the 1930s, with FDR’s New Deal, and please don’t get me started on that, Congress bowed to the president’s wishes and stretched Clause 3 to justify anything.
Lopez is the first case in which the Court said Excu-use me. The prosecutor tried to argue that the violence that might come of a gun-carrying student body could upset interstate trade. This did not carry the day. Five to four said “Outta here.” (If you are thinking Americans should never let a student wear arms to school, fine, the state can legislate against that.)
Anyway, Aunt Maret pleads that the only proper party to arrest Jahar (should circumstance make him a suspect, which she says they emphatically did not) would be Massachusetts.
— Mary W Maxwell is always on the prowl for breaches of the Constitution. No sin is too venial for her to be interested in. She does realize that Aunt Maret delivered much more than the above in her stunning affidavit. Also see Mary’s article “Surrealism: Unabomber’s Lawyer Defends Tsarnaev.”
She likes to be contacted at maryWmaxwell.com.