Boston bomber acted as ‘enemy combatant’

By Michael M. Rosen
April 23, 2013

The Obama administration announced on Monday that suspected Boston Marathon bomber Dzhokhar Tsarnaev would “not be treated as an enemy combatant” who would be tried in a special military tribunal. Instead, White House spokesman Jay Carney declared, “we will prosecute this terrorist through our civilian system of justice.”

But this decision is a grave mistake for legal, political and practical reasons. As we sift through the challenging implications of last week’s events, we must aim to deter future acts of terror on our soil by U.S. citizens and legal residents. Treating and trying domestic terrorists as enemy combatants  can provide such a deterrent.

The strongest reason to do this is to send a signal to other would-be terrorists that we, as a society, consider these acts so repellant that we treat them as acts of war.

There are many other reasons as well. First, when overwhelming evidence indicates a suspect’s guilt; when that suspect or his associates appear to have links to foreign terrorist movements, and when the crime they’re accused of involves intimidating the public. Under these circumstances, it’s appropriate to cite the suspect as an enemy combatant.

In 2006, Congress expanded the post-September 11 definition of “enemy combatant” to mean someone “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda or associated forces).”

There is now good reason to believe that the Tsarnaev brothers have supported hostilities against the United States and its allies. While no clear link exists yet between the suspects and radical Chechen separatists (let alone al Qaeda or the Taliban), the circumstantial evidence available to the public — including Tamerlan Tsarnaev’s recent lengthy visit to the north Caucasus, his familiarity with online jihadist content and Russia’s 2011 request for further investigation — suggests a connection to Islamic militants.

Even under the Obama administration’s refinement of the concept, in which the Justice Department jettisoned the term “enemy combatant,” Washington still has the right to detain anyone who “substantially supported” our enemies ‑ “including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

Some legal scholars and pundits, including in these pages, have argued it would be unlawful to try the remaining suspect as an enemy combatant. One writer, for example, said it would be “absolutely nuts,” notwithstanding the criminal complaint [PDF] filed against him Monday morning, alleging “use of a weapon of mass destruction.”

The critics are correct that the standards for detaining the younger Tsarnaev, a naturalized U.S. citizen, are higher. But neither his status nor his capture on U.S. soil bars the application of combatant status.

Second, treating and trying the Boston suspect as an enemy combatant confers important practical benefits. As Senators John McCain (R-Ariz.), Kelly Ayotte (R-N.H.) and Lindsey Graham (R-S.C.) have contended, eliciting information from Tsarnaev now, in the early days, is key.

“We need to know about any possible future attacks which could take additional American lives,” the senators rightly proclaim. “The least of our worries is a criminal trial which will likely be held years from now.”

Detaining the suspect as a belligerent would be the most effective method of gleaning key intelligence. Setting aside the legal debate about the “public safety” exception to his Miranda rights, let alone whether those rights even apply, the White House cannot keep Tsarnaev away from his attorney for much longer under ordinary criminal procedure.

By contrast, a combatant designation would, as the Wall Street Journal puts it, “allow for extensive, long-term interrogation without a lawyer,” including “long-term psychological pressure [that] can be crucial to learning if the brothers worked with anyone else, if they received terrorist training and more.”

The administration can always later reclassify Tsarnaev as a civilian suspect. Abandoning the opportunity to classify him as an enemy combatant now, however, risks losing actionable intelligence.

Trying Tsarnaev as a combatant would also relieve the severe logistical and security pressures created by a civilian trial in federal district court. Much as the Justice Department recognized when it acquiesced in Congress’s wise 2011 decision to preclude trying Khalid Sheikh Mohammed and other Guantanamo Bay terrorists before civilian courts, the circus of a public trial, its potential for the revelation of sensitive intelligence and security concerns should render a this a non-starter in Boston.

While a public trial can provide catharsis for the marathon bombing survivors and their families, as the civilian trial of Zacarias Moussaoui showed — during which the 20th September 11, 2001 bomber declared “God curse America, and God save Osama bin Laden! You will never get him!” —it can also provide terrorists with an open microphone to spout propaganda.

Moreover, while Daphne Eviatar has in these pages eloquently cataloged certain serious problems infecting military commissions in Guantanamo, the solution is to improve those tribunals, not to end them.

Whether the terrorist is foreign or domestic, visitor or citizen, Muslim, Christian or Jew, if he or she seeks to inflict mass casualties on Americans while in league with our enemies, they will be hunted, held and, ultimately, sentenced.

Just as we’ll bring to bear the entirety of our local, state and federal law enforcement apparatus to catch a perpetrator, so too we should apply every legal weapon in our arsenal — including military tribunals — to bring them to justice.

PHOTO: People at a candlelight vigil for slain MIT police officer Sean Collier at the Town Common in Wilmington, Massachusetts, April 20, 2013. REUTERS/Dominick Reuter

 

 

32 comments

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@JL4,

You seem to ignore the fact that those who employ illegal aliens either break no existing law or said law is not being properly enforced. In neither case are they presently subject to arrest. Once again, FAIL! I certainly agree this should be changed, with or without “immigration reform”.

My “…messages throughout most of…posts…” on this subject are simple and direct. Stop the endless flow of fence jumpers that threaten to overwhelm our society…whatever it takes. Those few lucky enough to get through a well designed and laid mine field to get here will likely discourage others with their tales of the experience, and the amount of drugs many of them carry into America on their backs will cease to be profitable.

You’re like most aggressive liberals…you will defend the rights of “every accused” with every last taxpayer’s dollar. But real life has limits, like Public Defender budgets. The U.S. is BROKE. There are a lot higher priorities for available funds than this kind of liberal indulgence.

In racing there is a saying: “Speed costs money…how fast do you want to go?” Well “justice for sociopaths” costs money…how many can you afford to sponsor for rights intended for LOYAL law-abiding citizens? So how much of your own money are you willing to put where your mouth is…up front?

(pregnant silence)

Posted by OneOfTheSheep | Report as abusive

@asrinath3,

You don’t seem to understand that an “enemy combatant” is a hostile dedicated so long as they live to challenge our society and it’s laws anywhere and everywhere. They LIVE to wreak such vengence as they can upon any who challenge their “world view”. They are islam’s version of the Kamikaze.

We catch many such “soldiers” before they have sufficient expertise and experience to do something for which aour society deems a life sentence or execution appropriate sentences. It is no secret that any time these people are not under effective confinement and control each constitutes a real and present danger to each American and each friend of America.

So you would exact no sacrifice of American citizenship by any impersonal hostile act against fellow Ameicans and accord them all normal rights and privileges at great expense in our civil courts? That is illogical, since we know after serving most possible sentences they could and would return into the world at large to gain such expertise and experience and continue “jihad” somewhere else someday? The only exceptions would be “life without possibility of parole” and execution, the “legal bar” for which is understandably high for normal citizens. Our present leaders may not be the brightest lights in the harbor, but they aren’t THAT stupid.

It is not “news” that long conflicts necessitate effective and reliable means by which “enemy hostiles” are kept from returning to the battlefield again and again. Historically this has meant “prisoner of war” camps and military tribunals. Is anyone so foolish as to believe the current world wide “war on terror” by civil societies will end in the foreseeable future?

Ans so there is Gitmo, our ONLY active prisoner of war camp. It can’t be closed, or it’s occupants transferred to mainland America, for reasons obvious to one and all. Perhaps the greatest is the existence of America’s “loose cannon” liberals that will bitch and moan and thresten and harrass until eventually each is released with utterly predictable results. Please.

Posted by OneOfTheSheep | Report as abusive

While he was supposedly motivated by the war in Afghanistan and Iraq, Tsarnaev should not be treated as an enemy combatant, defined as “members of the armed forces of the state with which another state is at war”. He has no military training or experience in combat whatsoever, and has no apparent affiliation with any known terrorist groups. His actions are merely those from the mind of a disturbed and violent individual, most likely coaxed into reality by his now-deceased older sibling, Tamerlan Tsarnaev.

How is he any different than those who carry out shootings in theatres or schools, who have been merely tried with counts of first degree murder (not to treat those charges lightly)? James Eagan Holmes, the perpetrator of the 2012 theatre shooting in Aurora, Colorado, was not labelled as such, and yet his death toll was much greater and he too made use of explosive devices.

Posted by mpirie525 | Report as abusive

@OOTS, we’re talking about American citizens being tried in an American court – not a military court. That’s what this discussion is about.

Where do you get these ideas, that the Constitution can be ignored because everyone is very angry? We’re angry – very much so, but I’m not prepared to abandon the 1st Amendment because I’m emotional. Don’t confuse my desire to uphold the Constitution as being soft on terrorism.

The reason so many in your camp want to try this remaining “Homegrown Terrorist” in a military court is so that he can be tortured, and kept indefinitely without legal representation for “additional information.”

And no “loose cannon liberal” that I’ve read or spoken to wants to release all GITMO prisoners. I may be mistaken, but isn’t torture (waterboarding as a recent example) illegal – against the Geneva Convention, or military rules for the treatment of POWs?

Eric Rudolf, who killed for his Christian beliefs – he should go to GITMO? Anyone who kills in the name of Christianity should go to GITMO? Of course not.

You want to set up mines along the U.S./Mexican border as a “deterrent” which means you want to kill a few to get your message across. You want to use death to get a message across to people who come to this country whose biggest crime is hanging drywall and picking tomatoes. Seriously?

You are as bad as the terrorists – advocating violence and death as a means to get YOUR message across. Isn’t that what the jihadist wants to do?

You want to kill a few as a deterrent because *it’s cheaper* than ways that don’t include their deaths.

And give people a chance to respond, bro. I have a life, and don’t spend every waking moment on the computer.

Posted by JL4 | Report as abusive

@JL4,

One way of “talking about” American citizens who turn against and act against Americans and American society is “treason”. Look it up. Those convicted, sometimes in a military court, can be tied to a pose and executed. To “make an example” of those exhibiting abhorrent behavior is not emotional, but logical. While the penalty of death is not an effective deterrant to all, it is in enough instances to still have a place in American penalties.

You’re comic relief if you think a “military court” is for torture. It is simply a court that operates by simpler rules than civilian courts. There are events that require more swift and efficient measures in emergency…look up “martial law”.

There are incorrigibles that perform acts against society again and again and some states have finally said ENOUGH and enacted “three strikes” laws that send them away for good and end their otherwise endless attacks on people or society. Well, if these wetbacks come across illegally again and again, a mines field is entirely an appropriate way to make it clear America has had ENOUGH and they WILL NOT be allowed to repeatedly flaunt OUR laws again and again for ANY reason whatsoever.

You would have America become a nations of victims. I do not. It’s that simple.

Posted by OneOfTheSheep | Report as abusive

@OOTS, you are a complete waste of time.

Posted by JL4 | Report as abusive

OOTS,
Treason refers to wartime, as in a citizen defects and gives the Russians nuke codes during the cold war. A psycho with an axe to grind is not committing treason, they are committing a crime. Your non-solution of mining the border to prevent illegal immigration (many immigrants cross in vehicles, not the desert – along with all the drugs, if you bother to look into it) dhows your callous disregard even for effectiveness. You would rather stand on the principle rather than look for a solution that works. I cannot think of anything better than prosecuting those who hire the border jumpers. Problem is, business needs them all to undermine local wages, so they fight every attempt at immigration reform.

Despite the hysterical rantings of thugs and bullies like Mr. Rosen, we are not at war against this Tsarnaev kid any more than we are at war with Timothy McVeigh. Therefore military courts in this case would simply be an egregious overreach by our military into civilian life. We have many layers of law enforcement that does a pretty good job already, no need for tanks on the streets. That you would have greater military control shows the hypocrisy behind your yelling about government control of our lives.

We are supposed to be a country of laws…

Posted by Benny27 | Report as abusive

@Benny27,

Your words are as a dog chasing it’s tail, entertaining but without purpose, effect or substance. The conscious and deliberate hijacking of American airliners and using them as weapons against civilian Americans on American soil was no less a declaration of war than the similarly unprovoked attack on Pearl Harbor, and resulted in more fatalities. It will be a war without end. Get used to it.

Your silly excuses for a “…psycho with an axe to grind…” fits virtually every current occupant of Gitmo.
While wetbacks and drugs may be carried across the desert on each side of America’s southern border, I really doubt that “Many…actually cross” it in vehicles. Something amphibious or a tunnel would be required (unless Mexico is throwing up pontoon bridges at night).

I do not disregard effectiveness, I repeatedly call for the “…solution that works”. But the present administration does not diligently and predictably enforce laws already on the books, so you suggest the “solution” to be more laws? Please.

America doesn’t need “immigration reform”. It needs predictable, effective, immediate, verifiable and maintainable closure of our southern border. It will take an unacceptable period of time to revise current laws and practices to have any meaningful effect on the unending flood of fence-jumping criminals carrying drugs into America night after night.

Tell the families who lost loved ones and the runners and spectators who lost limbs, etc. in Boston that “we are not at war with this “…Tsarnaev kid…”. And yes, Timothy McVeigh declared war on our government and could have been tried and executed with greater expediency and less cost than was done.

It is, in fact, I who “looks for the solution that works” for this new and continuing threat to America, and YOU who would rather “stand on principle”. I do not call for “tanks on the streets” but America has in place laws, rules and regulations that would do just that if and when “those in charge in emergency” deem such action appropriate and necessary.

It is to our detriment that this country has ceased to be a country “ruled by law” and become one “ruled by men” (with all the inconsistency and pettiness that that inevitably brings with it.

Posted by OneOfTheSheep | Report as abusive

Ignorance.

Apparently the US government admits that there are people held at guantanamo that have done nothing wrong, (kidnapped by mistake) but have since been radicalized by inhumane treatment: therefore they cannot be released. That is a farce of justice. If those individuals are psychos with an axe to grind, certain among them were made that way by our own rash actions.

Needless to say, the Japanese fascists you refer to were a legitimate government in charge of a powerful army. Pearl harbor doesn’t come into it: Al Qaida, on the other hand, consists of like-minded individuals that often do not even share communication, let alone a place to make war upon. This war vs an idea is an excuse for permanent war, nothing more.

AS for your ignorance regarding illegal immigration, there are thousands of trucks passing into the states every day from mexico. You think they search them all? Laughable.

You are a confused soul: Tsarnaev thought he was at war with us, but one man doesn’t make an army. I will not be cowed by your invocation of the victims as though I have no sympathy. Boston was bad enough, but it seems you forgot how huge the federal building bomb was. Similar number of victims, if I recall, but more of them died. (my respect for the emergency responders in Boston has grown immeasurably after this crime)

The point being that existing courts took care of McVeigh. No need to invoke the military like a panicky child. Calling for the military to treat a citizen (disgusting though he is) as an enemy combatant when they have simply committed a very large violent crime is to allow your mind to be clouded with rage. They just are not legally the same thing, and that is what matters if we are to be ruled by law, not the passions of men.

I agree: enforce the law. But to call for the military to do the work of policing is the first step towards military dictatorship, not regulating gun ownership, as you imply.

Posted by Benny27 | Report as abusive

Rosen is wrong. Was Timothy McVeigh classed as an enemy combatant? No, and he was eventually put to death. Just desserts.

Posted by explorer08 | Report as abusive

@Benny27,

You title your most recent post as “ignorance”. OK, I won’t disagree. In fact I would agree completely!

Have you any verifiable facts to back up your wild speculation of “people held at Guantanamo that have done nothing wrong (kidnapped by mistake)…”. I find your thought process and rationale fascinating. Why would any loyal American choose to see those who wage war upon America itself as victims?

The “…war vs an idea is an excuse for permanent war, nothing more?” That might have been how pacifists in England during the American revolution might have felt. But that was not the reality, now was it? Makes no sense.

Yes, thousands of trucks cross into America from Mexico every day. If you KNOW a significant number of illegal immigrants or illegal drugs enter the country in such manner, please give credible reference. I’m sure present procedures would quickly change were that fact. Otherwise your personal speculation serves no useful purpose.

“War” today will never again see the great tank battles of Desert Storm or WW II, nor the terror bombings by all combatants of the latter. It is no longer feasible for a “legitimate government in charge of a powerful army” to undertake a direct attack in any form on a country America (or any western nation) is prepared to fend (think Kuwait). The fundamental possibilities of “war” have changed. Even North Korea understands that.

Increasingly “war” is waged by individuals or human Kamikaze “suicide bombers” capable of significant harm. It may be one or more small groups identifiable as “hostiles” or “locals” only by whether they are burying an IED or holding a Kalashnikov at a given time, or not. At least Kamikaze pilots wore uniforms and flew planes clearly marked with national insignia.

My mind is not “clouded with rage”. I am offended when the U.S. has to use “smart bombs” on those dummies in the middle east, or must dirty it’s hands on those who are “American by paper” but traitors at heart. It was not my intent to suggest that you lack sympathy. It seems common sense is your primary mental deficiency.

The logic with which I would “deal with them” is not hot and fast for immediate gratification. It is cold and calculating, deliberate in it’s selection of the best long term deterrents. There is no “panic, but only resolve.
The humanity of any terrorist is shed like a snake’s skin the moment they pose a credible threat to civilized society.

As far as I’m concerned, this country should treat the Taliban and muslim radicals who fight without the identification of uniforms and hide in religious buildings, hospitals and among women and children as spies were tteatred in WW II. These were captured and, if not shot on sight, or executed without significant delay. If such execution is by drone by a serviceman far out of harm’s way by drone, so much the better. Whatever works.

You would have this country “roll over” when the challenge of thwarting or eliminating those who would threaten it is complex. You would be another Chamberlain seeking “peace in our time” from Hitler given the chance. Soon it will be ongoing in cyberspace as “unidentified actors” within “Legitimate states” seek to damage America’s economic system or infrastructure. You would have us “read Miranda rights” to some chinese soldier at a laptop half the world away? Sheer idiocy.

Times and threats change, and so we submit to government intrusion into our emails, etc. looking for the “chatter” of radicals who threaten us. We submit to intrusive search of our persons and luggage unthinkable in past years because we do not wish to be blown out of the sky by some idiot radical. Threats exist we dare not ignore.

If you prefer to stick your head in the sand and live as if nothing has changed, be my guest. But don’t expect much company. The predator the ostrich can not see can easily see and eat him. Reality has a way of not being denied for long.

Posted by OneOfTheSheep | Report as abusive

This is getting a bit more subjective, but I much prefer the Zune Marketplace. The interface is colorful, has more flair, and some cool features like ‘Mixview’ that let you quickly see related albums, songs, or other users related to what you’re listening to. Clicking on one of those will center on that item, and another set of “neighbors” will come into view, allowing you to navigate around exploring by similar artists, songs, or users. Speaking of users, the Zune “Social” is also great fun, letting you find others with shared tastes and becoming friends with them. You then can listen to a playlist created based on an amalgamation of what all your friends are listening to, which is also enjoyable. Those concerned with privacy will be relieved to know you can prevent the public from seeing your personal listening habits if you so choose.