Can Tsarnaev be ruled an ‘enemy combatant’?

By Ari Melber
April 21, 2013

Three major legal questions are now swirling around the Boston bombing suspect, Dzhokhar Tsarnaev.  Since his dramatic capture Friday night, the public debate has already begun muddling these issues.

An overarching question is whether the United States can legally treat Tsarnaev as an enemy combatant, and if not, whether his rights as a civilian defendant can be altered because he is accused of terrorism. President Barack Obama has taken a measured, but concerning, approach on this.

The first question depends on the law – so there is a right or wrong answer. If the Justice Department tried to classify Tsarnaev as an enemy combatant without the proper legal authority, for example, the courts would reject that attempt and completely reclassify him.

Senators  John McCain (R-Ariz.) and Lindsay Graham (R-S.C.), as well as other elected officials, are now calling on the Obama administration to follow the enemy combatant route. Before the Justice Department considers whether that’s a good idea, however, it must determine if it is a legal possibility.

The short answer is no – unless evidence emerges that tangibly links the suspect to enemy forces, like al Qaeda, that are listed in the September 11, 2001 authorization of force. This is the main source of the administration’s war powers, and courts have only applied the enemy combatant authority to potential defendants who are in or “substantially” backing al Qaeda, the Taliban or other related forces.

Many observers now talk about how they would like Tsarnaev to be branded an enemy combatant – partially because it would reduce the rights he is afforded. The intense desire to cancel the rights of accused murderers is an old phenomenon, of course. This is one reason our system uses laws and courts, and not a flash-mob referendum, to hold the line.

But the Obama administration can’t just brand any suspect an enemy combatant. It must use the legal criteria. And based on the available information,.Tsarnaev probably does not qualify.

There are also many strong reasons why it would be bad policy – even if it were legal. Revoking the constitutional rights of American citizens, on American soil, based on a suspected crime, opens the door to a two-tiered justice system and executive abuse.

Now, as the administration continues to treat Tsarnaev as a standard criminal defendant, the second question is whether his status as an accused terrorist should somehow alter his rights or treatment.

This is where the Miranda debate arises. Under a 2011 policy, when “operational terrorists” are involved, the Obama administration aims to stretch Miranda’s public safety exception to the limit.

The standard exception enables police to push suspects for information that could prevent imminent danger – without advising them of their rights to remain silent or get a lawyer. Courts have defined imminence as a matter of minutes, not hours or days.

The administration is now trying to go much further, which could set a new precedent. (The longest public safety exception case upheld a 50-minute delay.)

The good news for the Justice Department is that if you imagined a scenario for the broadest possible public safety exception, it could look a lot like this case. The suspect is accused of a series of bombings and attacks over a period of five days, and police believe he may have plans or knowledge about future attacks.

So courts might rule in favor of the administration’s gambit. If they don’t, it would not be a major legal setback. That is because, unlike the enemy combatant decision, a negative ruling would not disrupt the defendant’s status.

When the government gathers statements in violation of Miranda rights, the judicial penalty is that these statements cannot be used at trial. Yet investigators may think they already have enough evidence, and that the suspect’s answers are more valuable for use outside the courtroom.

None of that means, however, that the administration is wise to go far down this road.

Which brings us to the third issue: Obama’s continuing effort to straddle law and security in a battle with terrorists that has evolved a great deal over the past 12 years.

The Obama White House followed an administration that had tried to evade and dilute many human-rights protections – all in pursuit of a “global war on terror.” Some of President George W. Bush’s more extreme efforts, like erecting a zone without habeas corpus at Guantanamo Bay, were flatly rejected in a string of Supreme Court decisions (Rasul, Hamdan, Boumediene).

Other experiments proved unworkable even for Bush. He ultimately dropped attempts to detain two American defendants, Jose Padilla and Yaser Hamdi, as enemy combatants.

Along the way, this approach earned a stinging rebuke from Supreme Court Justice Antonin Scalia – no radical leftie – who wrote that jailing an American like Hamdi for years, without due process, violated the “very core of liberty” – the “freedom from indefinite imprisonment at the will of the executive.”

Scalia reminded the president that “where the government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court.”  (There are legal exceptions to that, Scalia pointed out, but Bush had failed to meet them.)

Obama has shown more concern for law and precedent than his predecessor. And he has the judicial record to prove it.

While Bush’s counterterror policy faced repeated rejections from the courts – though 60 percent of federal judges were from his party and national security decisions are usually treated deferentially, Obama’s largest judicial challenges have been limited to drone secrecy and an indefinite detention statute. He lost two lower court cases which are now pending, American Civil Liberties Union v. CIA and Hedges v. Obama.

On many security dilemmas – with the important exception of drone killings – Obama’s tack has been to methodically test executive authority without deliberately overreaching. That will come as no surprise to observers of his temperament.

The risk, however, is that the administration’s careful approach will still normalize a compromised set of rights for accused terrorists.

People with little regard for human rights, of course, have little regard for this concern. They can blithely demean the role of the particular right in play (“Who cares about the right to remain silent when bombs are going off?”), or resort to the lazy shibboleth that some enemies are beneath human rights (“Who cares what happens to accused terrorists?”). The same logic can justify torture, or extrajudicial executions, and a host of conduct that we associate more with our enemies than our constitutional system.

In this case, it is too early to be certain whether the administration is pushing legal limits to the maximum in a good faith pursuit of information – which it has the right to do – or using that cover to make a mockery of Miranda rights.

A great weight of evidence shows that programs which unilaterally revoke the rights of a class of citizen, or suspect, rarely remain very limited. As Yale law professor Jack Balkin has documented, when governments erect a parallel track of reduced rights to combat terrorism, the conventional law enforcement system faces a huge temptation to “increasingly [follow] the parallel track.” It’s not only the “bad guys” that have to worry about the government’s powers. In the areas of indefinite detention, drone targeting and Miranda, the administration is uncorking temptations that require a much deeper public debate.

There is one final wrinkle in the external constraints at work here. Bush set the bar so low, many influential political analysts have suggested his successor deserves praise simply for not breaking the law, for not operating black sites and not torturing people.

This is as absurd as it is depressing. Obeying the Constitution is a prerequisite for every president. Not a metric on which to be scored.


PHOTO (Top): Police keep a close watch on a blocked-off street as they move towards a police assault on a house on Franklin Street in Watertown, Massachusetts April 19, 2013. REUTERS/John Taggart

PHOTO (Insert  A); Dzhokhar Tsarnaev, 19, suspect #2 in the Boston Marathon explosion is pictured in this undated FBI handout photo of April 19,2013. REUTERS/FBI/Handout

PHOTO (Insert B): Supreme Court in Washington.  REUTERS

PHOTO (Insert C): Supreme Court Justice Antonin Scalia testifies before a House judiciary subcommittee hearing  on Capitol Hill in Washington May 20, 2010. REUTERS/Kevin Lamarque



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Lets see they placed bombs in a US street with the intention of killing and injuring as many American as possible. What do you think?

Posted by Crash866 | Report as abusive

“Wanting to ‘disappear’ the surviving bomber in this case is really even more despicable than the act itself.”

Really…explain. Also if they wanted to charge any of the others you mentioned as an enemy combantant they could have. They chose not too and tried them in civilian court. As they will more than likely do in this case.

Posted by Crash866 | Report as abusive