Boston bomber acted as ‘enemy combatant’
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