A ‘terrorist’ is no ‘enemy combatant’

April 24, 2013

The alleged Boston bomber is talking. So far, both what he’s saying and the fact he’s saying it underscore that the government made the right decision in charging him as a criminal in a U.S. federal court, rather than designating him an “enemy combatant” in military custody.

Dzhokhar Tsarnaev has been charged with using weapons of mass destruction, a charge that could land him the death penalty. He’s reportedly told investigators that he and his brother acted on their own, without any instructions from al Qaeda, and that the attack was motivated by a desire to “defend Islam.”

The strength of the evidence (he was caught on video laying his backpack down at the site of the bombing) and the severity of the potential penalty haven’t stopped critics of the Obama administration from claiming he should have been designated and detained as an enemy combatant, though. That’s because according to Senator Lindsey Graham (R-S.C.) the United States is engaged in a war that reaches from the highlands of Afghanistan to the streets of downtown Boston. Therefore we ought to be treating our self-proclaimed enemies accordingly.

Even if one could concoct a legal justification for treating Tsarnaev as an “enemy combatant,” as Graham and others insist is proper, as a practical matter it is a terrible idea.

There is no evidence so far suggesting Tsarnaev and his brother were working with al Qaeda, the Taliban or any of the “associated forces” that Washington says we’re at war with. So there’s no legal basis for treating him as an enemy combatant. That status is reserved for members of armed groups with which we’re actually at war. Proclaiming oneself at war with the United States based on some twisted ideology and imagined battleground doesn’t legally qualify.

What’s more, Tsarnaev is a U.S. citizen. Any attempt to detain him as an enemy combatant would face strong constitutional challenge.

Calling a 19-year-old American, who was allegedly inspired online to engage in militant jihad, an “enemy combatant” is precisely the wrong approach. It buys into his twisted and dangerous view that the United States is at war with all Muslims and that only by attacking Americans can he serve Allah.

This is an absurd belief, of course, unsupported by any rational reading of Islamic tenets. But charging Tsarnaev as an enemy combatant would lend credibility to his world view – elevating his status in a way that could be a lethal motivation for others.

Judge William Young, who sentenced the “shoe bomber,” Richard Reid, in 2002, faced similar pressures. His words still resonate: “You are not an enemy combatant,” he said to Reid in a Boston federal court. “You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature.”

Reid, like Tsarnaev, was a self-proclaimed enemy of the United States who said he tried to kill Americans in “allegiance to Islam.” To treat such men as enemy combatants is to confirm their view of a global religious war. And terrorists aren’t the only ones who hold that extremely dangerous view.

Consider what Tsarnaev’s mother said to a reporter on Tuesday. Zubeidt Tsarnaev, who lives in the Russian Republic of Dagestan, maintains her sons’ innocence and told CNN that she believes they were framed by U.S. authorities because they were Muslim. “They were being killed just because they were Muslim,” she said. “Nothing else.”

She’s surely not the only one who believes that.

Still, some lawmakers and commentators continue to insist that alleged terrorists like Tsarnaev should be treated as enemy combatants. The assumption seems to be that by denying them the rights afforded in the U.S. criminal justice system – namely, the rights to remain silent and to an attorney – will make them more likely to provide valuable information to U.S. authorities. “Naming him an enemy combatant would be useful,” the Wall Street Journal claimed, because the “designation allows for extensive, long-term interrogation without a lawyer.”

There is no support, however, for the claim that long-term interrogation without a lawyer helps anyone.

First, the FBI can invoke a “public safety exception” that allows agents to question a suspect about impending threats before reading him his rights. But after that initial questioning, accused terrorists usually continue to cooperate with authorities and provide valuable information – even after they’re told they can remain silent and have the assistance of counsel. Indeed, it’s often their lawyers who convince them to do that.

As David Kris, former head of the Justice Department’s National Security Division, explained after leaving office: “The reality is that when sophisticated defense attorneys determine that the government has strong, admissible evidence to support a conviction and lengthy sentence, they will often encourage their clients to cooperate. In this sense, defense lawyers can be very helpful.”

They know, Kris explained, that suspects charged with terrorism are almost always convicted and face long prison sentences. “This creates powerful incentives to work within the system – to cooperate and obtain a somewhat shorter sentence or improved conditions of confinement – rather than to challenge the system.”

This is what’s happened in recent major cases. Faisal Shahzad, the Times Square bombing suspect, for example, was initially questioned without a lawyer or Miranda warnings under the public safety exception and provided what the FBI called “valuable intelligence and evidence.” After he was read his rights, he continued to do more of the same.  Within a month, after explaining exactly where and from whom he’d received explosives training, he’d confessed to 10 felonies.

Najibullah Zazi, the Denver airport shuttle bus driver who confessed to leading a plot to attack the New York City subway system, also gave investigators valuable information about others involved in the plan, their training, motives and ties to an al Qaeda recruiter. So did the Detroit “underwear bomber” Umar Farouk Adbulmutallab – after he was advised of his right to remain silent and his right to an attorney.  The list goes on.

Indeed, since the September 11 terrorist attacks, federal law enforcement has successfully prosecuted nearly 500 terrorism-related cases, often based on information received from cooperating defendants. The military commissions prosecuting alleged enemy combatants in Guantanamo Bay, on the other hand, have completed only seven cases. Two of those convictions have been reversed on appeal.

The assumption that imprisoning a suspect indefinitely as an enemy combatant will prevent the next attack has no basis. Indeed, the United States continues to hold 166 prisoners at Guantanamo Bay. That didn’t prevent this attack. It may have inspired it. At the very least, it probably fueled the older brother’s suspicions that the U.S. government is at war with the Muslim world.

So far, Dzokhar has reportedly acknowledged his role in the bombings that killed three people and injured more than 250 others. He’s said that the brothers were operating on their own, without help from al Qaeda or any other overseas terrorist organizations. The FBI will certainly investigate those claims and see if any evidence suggests otherwise.

But now is the time to commend federal law enforcement for its handling of this case and to support its continued investigation. This is not the time to derail the case by diverting it to a system that has repeatedly failed elsewhere.

Critics should be careful what they wish for.


PHOTO (Top): Suspects in the Boston Marathon bombing April 15 in handout photo released through the FBI website, April 18, 2013. REUTERS/FBI/Handout

PHOTO (Insert A):Dzhokhar Tsarnaev, 19, suspect #2 in the Boston Marathon explosion in undated FBI handout photo.  REUTERS/FBI/Handout  

 PHOTO (Insert B): “Shoebomber” Richard C. Reid is taken from the Massachusetts State Police barracks at Logan International Airport in this December 22, 2001 file photo.  REUTERS/Brian Snyder/Files





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Enemy Combatants are not usually soldiers despite what some judge says. If you read the Geneva Conventions, there is a separate definition for soldiers (uniform,stated rank in military structure,etc.)
whereas Enemy Combatants just have to take up arms against a signatory power while citing allegiance to the enemy of that power.

Posted by VultureTX | Report as abusive

The same politicians who want the designation of enemy combatant are also the same ones who are in love with GITMO, despite it being a total failure. They are less interested in convictions, then in punishment without asking whether it serves any purpose. And GITMO is a great recruiting tool for al Qaeda.

They ignore that the Federal Courts are effective in getting convictions.

I wonder why they seem to hate the Constitution so much, when there took an oath to uphold it?

Posted by pavoter1946 | Report as abusive

When you morons figure out we are at war with Islam, the designation of enemy combatant will make sense. Until then you will keep writing this drivel, debating an irrelevent issue.

Posted by wonderinghow | Report as abusive

There’s no reason to label this man as an enemy combatant. He’s a terrorist. He’s a citizen. He’ll be dealt with the same way anyone else who kills and injures hundreds of people is dealt with. It’s all semantics, at this point. Does the label we put on them really matter as long as he gives up the information the government needs right now?

Posted by DonaCollins | Report as abusive

You people are missing the very large point here. In your headlong rush to codify the position of the murderer who planted the Boston bomb you seem to be oblivious to the potential key motivating factors behind these attacks. I find this difficult to compute as it seems that any rational person has the ability to consider that the actions by the USA against other cultures has engendered a deep sense of hatred against ‘all people’ in your homeland. What these crazy zealots did is unforgivable….but that’s a word which applies across the board. http://cursor.org/stories/appendix5.htm
Please do not allow your public servants to dictate how you will interact with the rest of your species around our planet. America, love it or loathe it is a nation founded on enlightened principles and left in the care of your policy makers that light has dimmed to such a degree that ‘the people’…those that make ‘the nation’ are stumbling in the dark…

Posted by auntiej | Report as abusive

Timothy McVeigh and Eric Rudolph were terrorists or bombers if you like but were charged and convicted in a US court like any other American. Salameh and Yesin who bombed the World Trade Center in ’93 were also tried in US courts. It is not liberal or conservative to want to try these men in our court system. It is simply a sign and a testament to the great democracy within which we live.

Posted by Saywhaaaaa | Report as abusive

I believe the mother and father can’t mentally process the realization of what has happened, so I expect their response. I wonder how they are reacting to the evidence they are being shown by the authorities who are questioning them now.
I agree with this article completely.

Posted by iferment | Report as abusive

The 1st Amendment reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

While this is no way implies that murder is protected under the Constitution, it does state outright that people are free to belong to any religion they choose.

Two American citizens who choose to convert to Islam and are not soldiers of any army are not enemy combatants. They have the freedom to convert to, or be born into, Islam. They don’t have the right to kill anyone (does that even need to be said?)This kid should be prosecuted to the fullest extent of the judiciary system, and then put away until his death, or delivered the death penalty, but it should be in an American court.

If you argue that bombs are “weapons of mass destruction” I’d have to agree with you. But so are fully automatic assault rifles, and Congress just voted to keep them legal for each American citizen to own at will. So which is it? Uphold the Constitution or change it at will to suit your emotional reaction to events?

But to say that all Islamic people who commit a crime are enemy combatants is absurd. They were/are American citizens just like Jared Loughner, Adam Lanza, James Holmes or any other American citizen (who were likely Christians and killed more people than these guys did).

What’s to stop the government from saying that “Religion A” or “Religion B” is an “enemy religion” and therefore declaring those who belong to it enemy combatants???? You guessed it: The Constitution of the United States.

Posted by JL4 | Report as abusive

This was politically/regliously motivated.

Posted by Crash866 | Report as abusive

@JL4 up and lied “But so are fully automatic assault rifles, and Congress just voted to keep them legal for each American citizen to own at will.”

/and that is why you never win, facts evade you. and you know it too.

Posted by VultureTX | Report as abusive

That’s also saying that the “War on Terror” should not be conducted by the military, but as a forever and ongoing police action. The military intervention in the War on Terror has been an abominable failure, not because of the quality of our military, but because of inappropriate use of force directed by ignorant idealogues.

After the destruction of FISA with the [Un]Patriot Act and the profligate use of torture and death, this country has been heading down a path to hell. So much for American idealism and exceptionalism.

Posted by ptiffany | Report as abusive

The terminology wars are purely and simply quibbles over justifying the treatment of captives.

The USA is at war with the Muslim religion, whether individual Muslims are active in the fight or not. Thus all Muslims by religion are “enemy combatants”. And since most of the proponents of this war are Republicans, those who are not Republicans are “enemy combatants” too. Hey, anyone you do not like is an “enemy combatant”.

This is simply an excuse to kill those who you want to kill. Of course you are justified because you would never want to kill someone who did not “have it coming” now, would you? Trust self-righteousness! In fact, we can simply skip law altogether and just rely on those superior human specimens who rule us. Heaven knows they could never make a mistake or commit what lesser human beings would unjustifiably call a “felony”.

Posted by usagadfly | Report as abusive

The very simplistic message here is Tsarnaev is a citizen of the United States. Unless there is some probationary period dictating otherwise he shoud be afforded the same 4th and 5th ammendment rights as any other citizen. Barring expediency issues, not advising him of his Miranda rights and gaining a clear indication he understood those rights is ignorant. Any information leading to his affiliation with any radical group would be sifted out anyway regardless of the criminal case. If and when all the video/witness evidence is excepted by a criminal court it would be an injustice to the victims and the Boston citizens to have his statement and further evidence gained by those statements ommitted.

Posted by Enspector1000 | Report as abusive

Radicalized devout jihadis can join up the worldwide fight against the US from any place at any time. That’s the author’s missing piece of information and why she comes to erroneous conclusions. The reality isn’t that the US is at war with Islam, on the contrary, it is that fundamentalist Islam is against the West and the freedoms and way of life we practice.

Being ignorant of the nature of jihad and the motivation of those who engage in violent jihad, or denying their war on us will not make them like us better. As long as you are a non-Muslim you are an enemy in the struggle of jihad.

Convert to Islam or submit to Muslim rule and pay the jizya (tax on non-Muslims) or die — that’s in the Qur’an.

Posted by Somerton1951 | Report as abusive

“The strength of the evidence (he was caught on video laying his backpack down at the site of the bombing)”

Please link to where this video is available. I’ve seen no such video, nor has anyone I’ve spoken to about this issue.

Posted by Rourk77 | Report as abusive

Bunch of Non-military types posting their opinions. Nowhere in our Constitution does it say that “if you get caught with your hand in the cookie jar, do you need a trial to determine if your guilty.” It say that you’re authorized a lawyer to make sure that what rights you have left are not violated. You just need a sentencing trial with a lawyer representing you to make sure no one takes vengeance against you. It is simple if you kill you die, if you rape children you die, if you steal you gone for life and do hard labor, not get a degree, if you use drugs you get a free overdose. The plain and simple truth is most Arabs hate us…Note the word Arab. Muslim and Islam describe a religion, Arabs are a group of people composed of tribes. Sort of like the American Indians all being related to each other. Thank God they weren’t because they would have kicked our butts, instead of being defeated. We are not at war with a religion, we are at war against Arabs…Until Americans recognize that fact we will never win the war against terror. The terrorists are Arabs attacking America…I realize this may seem like rambling and it is because that is what everyone is doing talking about Muslims and Islam, it is political speak..Talk about Arabs and tribes and you will be on the right track.

Posted by Dalmane | Report as abusive

@Vulture – I stand corrected on that one. Thank you for pointing out my error.

Posted by JL4 | Report as abusive

Daphne, I don’t disagree with your conclusion, but I find your preachy tone incredibly annoying. This is a complicated issue on which reasonable people disagree, not something to roll your eyes at.

Posted by amateurediteur | Report as abusive