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.