Dzhokhar Tsarnaev: Could He Get Killed Before His Trial?

Consider this thought experiment. Suppose for a moment that Dzhokhar Tsarnaev, who is currently in police custody as the lead suspect in the Boston Marathon bombings and is the younger brother of fellow (and now deceased) suspected bomber Tamerlan Tsarnaev, were to suddenly die unexpectedly before going to trial. Given the present uptick in the younger Tsarnaev’s health, such a scenario would rightly elicit public concern regarding whether foul play was involved and, if it was, whether the governing authorities were responsible for it. As fantastic as this scenario may seem on the surface, there are at least two reasons why this scenario is more plausible than it initially appears.

The first is the legal framework, or lack thereof, governing the executive branch’s options in addressing terrorist threats. Now to be sure, the national conversation regarding the counterterrorist powers of the executive branch has taken a remarkably refreshing turn for the better. Undoubtedly the highlight of this sea change has been the recent speech by President Obama in which he openly discussed the need for the country to adopt a peacetime mentality and officially end the “War on Terror” in order for the federal government to relinquish the extraordinary powers it had assumed since 9/11. As magnificent as this speech was (and I agree with those that think it was the finest speech ever given by Barack Obama), the reality of an unaccountable executive with lethal power continues. Contrary to what some may think, this lethal power of assassination on the part of the executive is not and has never been confined to drones or to any other specific means. In theory then the president or some other high-ranking national security official could order Dzhokhar Tsarnaev’s death on the grounds that such a decision was in the best security interest of the United States. As unlikely as this particular scenario appears given the heightened (and much deserved) level of political and media scrutiny the administration is currently receiving, the “legal” grounds for it do exist.

The second reason is that an arguably similar scenario involving this case has already occurred. While the details of the incident are still sketchy, it was reported last week that the FBI was involved in a shooting that resulted in the death of a 22 year old Chechen male by the name of Ibragim Todashev. The young man was being questioned on his potential relationship to Tamerlan Tsarnaev when he allegedly attacked his FBI questioner and was subdued only after receiving multiple gunshot wounds. It was later reported that in addition to being unarmed, Todashev may have even been opposed by as many as five police officers with stun guns. If this is true, questions regarding his supposed confession of his involvement in the Boston Marathon bombings, as well the propriety of lethal force employed against Todashev by federal law-enforcement agents, will inevitably be raised. As it now stands, there is only one living suspect of the Boston Marathon bombings and that suspect is Dzhokhar Tsarnaev.

For the record, I do not believe that Dzhokhar Tsarnaev’s (pre-trial) life is in mortal danger from the federal government. The overwhelming majority of federal law-enforcement and national-security agents are true professionals that seek nothing more than to serve their country and perform their jobs at the highest of levels. In addition, there is no conceivable reason for the Obama administration to exercise lethal force, even in a covert manner, against the young man. His untimely death would invite more unwanted scrutiny onto the administration while providing no conceivable “upside” on national-security grounds. That said, this scenario is certainly not beyond the pale of plausibility. If there is anything Americans have learned over the past decade it is to distrust their government. Recent events, particularly those involving this administration, have only served to legitimize this distrust.