The Great Debate

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.

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.

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.

Boston was in lockdown Friday. The machinery of a major metropolitan area in the richest nation on earth had come to a grinding halt. We know why this is happened – a terrorist manhunt – but how, exactly, does a modern bustling city come to a full stop?

In fact, much of ordinary life continues. Water still comes from the taps for a shower; you can telephone your family and friends; you can even work on your computer or read quietly in the backyard. But one key aspect of city life stopped: the movement of people. What matters most in a lockdown of this scale is the ability to halt the circulation of people.

Whether or not a lockdown works often depends on who – the citizens or the terrorist suspect – can stay still the longest.

(Bernd Debusmann is a Reuters columnist. The opinions expressed are his own)

By Bernd Debusmann

WASHINGTON, May 8 (Reuters) – What do the late Senator Edward Kennedy, Nelson Mandela, American Airlines pilot Kiernan O’Dwyer, Democratic congressman John Lewis and Sam Adams, aged 5, have in common? They have all been on one of America’s terrorist watch lists and found it easier to get on the list than off it.

That’s a trend almost certain to continue as the database grows relentlessly, resulting in a huge haystack of suspects in which to find the terrorist needle. There are no up-to-date figures on the size of that haystack but according to a report a year ago by the Justice Department’s inspector general, the “consolidated watch list” contained more than 1.1 million “known or suspected terrorist identities” by the end of 2008.

That corresponded to around 400,000 people, plus various aliases and ways of spelling names. If the growth rate of previous years is anything to go by, the database may well reach two million entries sometime before the end of this year. The government’s approach to the watch lists has fluctuated from rapidly expanding it after September 11 2001, to trying to trim it, as happened in the final year of the Bush administration.