HH: With the Smart Guys, Dr. John Eastman, professor of law at Chapman University School of Law, my colleague there, where he was also of course the dean of the law school, and presently dean of the law school at the University of California, Irvine Law School is Erwin Chemerinsky, Erwin a man of the left, John a man of the right. Together, they are the Smart Guys. If you ever want them to come to your town and talk to you, look at www.hewittspeakers.com. I’ve got them listed there. You can get in touch with them. But gentlemen, I have two questions for you today in two segments. The second segment, I want to devote to how we treat the suspect in Boston. The first segment is how we treat the place in Boston. John Eastman, is there any way for Boston to act preemptively to prevent any land use controversy surrounding the area where the bombing took place as happened in New York? In other words, how do they stop it from being captured by, say, a right wing anti-Muslim fanatic? Or how do they keep it from a radical imam exploiting it? Is there any way to do so?
JE: Oh, as far as the memorials and what have you, if somebody wants to put up something? Yeah, you know, the city has a lot of flexibility under zoning. The problem is going to come is if their motivation is to eliminate content of speech, that that would get them into trouble. But if they’re just going to say you know what, this area now has become so sensitive, that we’re not going to allow any development or any speech of any kind, of any content, on any subject. Those kind of zoning regulations are permitted as long as there remain viable alternative outlets for the speech or the protest or what have you.
HH: Erwin Chemerinsky, around Gettysburg and the area I lived in Virginia around Manassas, there were constant land use battles to keep the sacred space sacred. It wasn’t sacred in a religious sense, it was sacred in a civic sense. Is it possible for a city, in your view, to be both content and viewpoint neutral, and come in and say you can rebuild whatever was here, you can do retail, but we’re not going to let anyone hobby horse messaging in here?
EC: Well, John got it exactly right. Cities have very broad latitude with regard to zoning. Now with regards to speech, they have to be strictly content neutral. They can’t say we’ll allow speech that’s one viewpoint or one subject, but not another viewpoint or another subject. Now it’s possible they could say we’re going to exclude all speech from this particular place, but then the question is really what’s the nature of the place? If you’re dealing with a part or a public sidewalk, I don’t think a city’s going to be able to exclude all speech, however sacred they might want to make that spot.
HH: John Eastman, how hard would it be for Boston to craft, with appropriate purpose and clear conscience, and not an animus towards any particular point of view, the kind of ordinance that would both protect and at the same time allow events to happen, parades and memorials?
JE: Well, you know, it’s that second piece that creates the problem. If we allow parades and memorials by private actors, then it becomes a public forum. And my ability to control what private people can say in my public forum is very limited. I can’t have viewpoint classifications or discrimination. I can’t have even content-based discriminations. But if I say look, this area used to be a public forum because it was a sidewalk, but given these events, the security issues that might arise from continuing to keep that area as a public forum are so great that we’re no longer going to treat that as a public forum. And then the kind of things that go on there are going to be government speech. We will allow sponsored government speech, and the government is allowed to take viewpoints of its own, and decide which memorials to go in there on its own. But they would have to first get rid of the idea that the area is a public forum open to all speakers.
HH: And last question on this subject, Erwin Chemerinsky, we all know the famous or the infamous Fred Phelps, and how he exploits tragedy and sorrow. If Fred Phelps makes it known that he wants to rent the next space available at the scene of this bombing for the purposes of doing what I consider to be vile messaging, what does Boston have to do now to prevent that? And isn’t part of preventing it saying they’re not actually thinking about preventing it?
EC: If the city opens the place to speech, Fred Phelps has the right to be there for his vile message as much as anybody else. Once the government opens a place for speech, or once the 1st Amendment requires that a place be open to speech, then everybody has a right to express their views, however distasteful you or I might find them to be.
HH: But are there ways that the city could act preemptively to prohibit all speech, including Fred Phelps’ speech, from ever taking not an occasional parade or walk down the street, but a rooted place within one of the retail establishments?
EC: Yes, I think that what John said here, too, is right. I think that the city could say that there is a specific designated area where the bombing occurred that they’re going to use exclusively for a memorial. And it’s not going to be a public forum, they’re not going to use it for anything but government speech. And if they do that, then they can exclude Fred Phelps. But once they choose to open it for some people, then they’ve got to open it up for everybody.
HH: Erwin Chemerinsky, John Eastman are my guests. We come back to talk about what to do with Bomber #2 when we return to this week’s edition of the Smart Guys.
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HH: Now we turn to a question that’s absorbed quite a lot of television and radio commentary time this week. Erwin Chemerinsky, the moment that the second Boston bombing suspect, and I’ll call him a suspect, though I know he’s guilty, was captured in the boat. What do you think ought to have happened to him? And what were the options open to the government as they considered what they actually did do to him?
EC: Well, the key was, of course, getting him medical attention. He was seriously wounded. If the police were going to question him at all, they’re required to give him Miranda warnings. The only exception would be if they wanted to ask him whether there were any other bombs. Since that would be an imminent threat, they wouldn’t need Miranda warnings. But if they were asking him any questions that related to what had happened previously, trying to solve that crime or get evidence of that crime, they had to give him Miranda warnings. And from that moment on, the government was obligated to follow the Constitution. There’s no exception to the Constitution for serious crimes, or even for terrorist acts, that occur in the United States.
HH: So if they did not do that, Erwin, what is the consequence, because they did not do that, what is the consequence of their not having done that?
EC: If they question him without Miranda warnings, then any statements they got from that questioning will not be admissible in evidence unless they can show that at that moment, they faced an imminent threat like finding out where their bombs were located. There is a public safety emergency exception to Miranda that allows questioning and the statements to be admissible, but only if it’s dealing with an imminent, immediate threat.
HH: And a last question, if it fact he was tried not in a civilian court but a military tribunal, would the Miranda doctrine apply to the military tribunal rules as well?
EC: Well first, I think it would be unconstitutional to try him in a military tribunal and a terrible mistake. Second, we don’t know the answer to that question, because we’ve never had a situation where someone was arrested for a terrorist act in the United States, tries in a military tribunal without Miranda warnings. My hope is that the Court would declare that unconstitutional. There’s no exception to the 5th Amendment or the 6th Amendment for terrorist acts.
HH: Now John Eastman, I might be misremembering, correct me, of course, if I’m wrong, but I thought one of the German Nazi saboteurs was an American citizen who was not Mirandized.
JE: Oh, yeah, what Erwin said was technically correct. The Court has not decided whether they’re obligated to give Miranda, because Miranda came 20 years after that case. But the fact of the matter is there were eight German saboteurs captured on U.S. soil, arrested. They were here to commit acts of war. One of them was an United States citizen. They were tried in military commission, and they were executed, and the Supreme Court allowed for that. And I don’t think the subsequent decision in Miranda alters that. Miranda does not apply to military combatant cases. And the Court has never held that it does. And now what makes this a little bit odd is if these kinds of acts of war were also crimes. And the Department of Justice, I think, has taken an inconsistent position, saying we’re going to try them in civilian court, but question him as if he’s a military combatant. And I think that is an incompatible and incoherent in the way they’re approaching this. They ought to pick one or the other.
HH: So let me ask you the question I asked Erwin. At the moment he got out of the boat and they had him in custody, and had obtained life-saving treatment for him, what were the options open to the government? And what do you think they ought to have done?
JE: Well, the three options were to give him Miranda warnings, treat this as just an ordinary crime, and then he can retain counsel, he can not talk to you, what have you, to take advantage of the exception that’s been recognized in civilian crime cases in Miranda that there’s a public exigency, emergency exigency, and try to find out if there are other bombs. But all of those are both on the civilian side. The third option that I think they had was to say this guy is part of an international war effort against the United States. He has committed acts of war against the United States. We’re going to designate him as a combatant, and we’re going to prosecute this, if we prosecute it at all, or at least detain him under the Department of Defense, and treat him as an enemy combatant.
HH: And so it is not necessary, if he is treated as an enemy combatant, that he ever be taken to a war tribunal, because it’s not necessary to ever do that while the war is ongoing. That’s where the confusion, for example, between Bill Kristol and Jane Harman arose, is that enemy combatant status does not necessarily mean a military tribunal, John Eastman.
JE: No, that’s right. You can detain somebody during the conduct of the war. Now what makes this war odd is that almost by definition, the tactics they are using in this war violate the laws of war. So every detention of an enemy combatant can also lead to a criminal prosecution for violating the laws of war, and that can be done under military tribunals.
HH: Erwin Chemerinsky, your comments?
EC: I vehemently disagree. Quirin were Nazi saboteurs during World War II. What John has just been saying would then to be to say that any act of terrorism is going to be assumed to be part of the war against al Qaeda, and that therefore, any crime of terrorism in the United States doesn’t have to even lead to a trial. It can lead to indefinite detention as an enemy combatant. By that notion, Timothy McVeigh and Terry Nichols could have simply been held as enemy combatants forever, or tried in a military tribunal, or the first World Trade Center bombers from 1993 could have been held as enemy combatants. Why do this? Why don’t you trust the Constitution? We were able to convict and even execute Timothy McVeigh and Terry Nichols. We were able to convict the first World Trade Center bombings. There were the anarchists in the early part of the 20th Century who detonated bombs in cities. They were convicted. I think the Constitution can easily handle this and lead to convictions if this individual committed a horrible crime.
HH: John Eastman?
JE: But you make a false assumption there that the Constitution requires that we treat combatants as if they were just simply civilian criminals, and it does not. And the 5th Amendment language specifically recognizes that the rules of war, the rules applied to our own armed forces, are going to be different. It doesn’t violate the Constitution to go a different route that the Constitution specifically authorizes. If the Department of Justice and the White House had evidence linking this guy to al Qaeda, because of the radical Islamist connections he had in Chechnya, and they make the determination that that qualifies as a combatantcy, and therefore qualifies under the Authorization for the Use of Force in this particular war that Congress has provided, then treating him as a combatant with those rules is not any violation of the Constitution. It actually furthers one of the routes the Constitution specifically authorizes.
HH: Last 45 seconds to you, Erwin Chemerinsky.
EC: I strongly disagree. This is a crime in the United States. A crime in the United States should be prosecuted in court, and I believe the Constitution requires it. The only authority to the contrary was a Nazi saboteur during World War II, in a case that even the Supreme Court has said is a very questionable precedent. I think we should trust the Constitution and the courts. There’s no need to try to circumvent them.
HH: Erwin Chemerinsky of the University of California, Irvine, John Eastman of Chapman University Law School, thanks to both of you for joining me on the Smart Guys segments. Thank you very much.
End of interview.