No, Dzhokhar Tsarnaev Is Not An Enemy Combatant. He Is A Criminal.
The Boston Marathon bomber must be tried in a court of law.
Just hours after Dzhokhar Tsarnaev was finally apprehended hiding underneath a boat tarp in a backyard in Watertown, Mass., Senator Lindsey Graham and other Republicans were calling for him to be treated as an “enemy combatant” when he was captured:
Several Republican lawmakers are calling for the surviving suspect in the Boston Marathon bombings to be tried as an enemy combatant, rather than as an ordinary criminal.
“It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city,” read a Saturday statement from Sens. Lindsey Graham (R-S.C.), John McCain (R-Ariz.), Kelly Ayotte (R-N.H.) and Rep. Peter King (R-N.Y.). “The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans. The suspect, based upon his actions, clearly is a good candidate for enemy combatant status. We do not want this suspect to remain silent.”
Their statement came after Dzhokar Tsarnaev was taken into custody and sent to the hospital Friday night. The suspect had earlier spurred a Boston-wide lock-down as authorities searched for him Friday. His older brother, Tamerlan Tsarnaev, died earlier in clashes with authorities. The lawmakers argued that a criminal trial would move slowly at a time when information is needed fast.
“We should be focused on gathering intelligence from this suspect right now that can help our nation understand how this attack occurred and what may follow in the future. That should be our focus, not a future domestic criminal trial that may take years to complete,” they said.
King told POLITICO on Saturday that Tsarnaev was operating on a “battleground.”
“America is part of the battleground,” he said. “If you capture someone on the battleground, they should not be given the privilege of a civilian trial where they are given different rights. He’s going to be convicted one way or another. My concern is intelligence we can get from him, whether other people were involved, whether he’s dealt with other Islamist terrorists in the past, is there a Chechen base overseas [the Tsarnaev family is from Chechnya], [ties] to the Mideast, other cells?
“The only way to get that is through extensive, intensive interrogation,” he continued, adding that his “real concern is whether there are other sleepers around.”
(…)
The lawmakers argued that the United States faces major challenges posed by “radical Islamists.”
“We continue to face threats from radical Islamists in small cells and large groups throughout the world,” they said. “They have, as their primary focus, killing as many Americans as possible, preferably within the United States. We must never lose sight of this fact and act appropriately within our laws and values.”
They urged the Obama administration to classify Tsarnaev as an enemy combatant.
President Barack Obama offered a possible nod to that issue in his televised address Friday night, saying that “it’s important that we do this right.”
“That’s why we have investigations. That’s why we relentlessly gather the facts. That’s why we have courts,” Obama said.
Yes, Mr. President, that’s exactly why we have courts. We have courts because they are essential to the protection of the rule of law and the rights of individual citizens, and they are the method by which we dispense justice under rules that are designed as much to protect us as they are to protect criminal defendants. Treating Tsarnaev, a naturalized American citizen who has lived in this country since he was eight years old, no differently from men who were captured on battlefields in Afghanistan and are currently sitting in the prison complex at Guantanamo Bay where they are likely to remain for a very long time, is a perversion of that system of justice in the name of a haphazard system of non-justice that has risen up in the years since the September 11 attacks. If Tsarnaev is treated as an “enemy combatant” then it would mean that any American citizen could potentially receive the same designation if the government so chose, and that they could be subjected to the same deprivations of rights, including lack of access to counsel for extended periods of time. That’s a perversion of justice and a perversion of liberty.
This isn’t new for Republicans, and especially not for Lindsey Graham, who said this last year during a debate over indefinite detention:
It has been the law of the United States for decades that an American citizen on our soil who collaborates with the enemy has committed an act of war and will be held under the law of war, not domestic criminal law,” he said. “In World War II it was perfectly proper to hold an American citizen as an enemy combatant who helped the Nazis. But we believe, somehow, in 2011, that is no longer fair. That would be wrong. My God, what are we doing in 2011? Do you not think al-Qaeda is trying to recruit people here at home? Is the homeland the battlefield? You better believe it is the battlefield.”
Graham repeated the “homeland as a battlefield” comment in an interview earlier this week with Washington Post blogger Jennifer Rubin:
I spoke with Sen. Lindsey Graham (R-S.C.) by phone just a few minutes ago. He said of the Boston bombers: “They were radicalized somewhere, somehow.” Regardless of whether they are international or “homegrown,” he said, “This is Exhibit A of why the homeland is the battlefield.” Recalling Sen. Rand Paul’s filibuster, Graham noted that he took to the Senate floor specifically to object to Rand’s notion that “America is not the battlefield.” Graham said to me, “It’s a battlefield because the terrorists think it is.” Referring to Boston, he observed, “Here is what we’re up against,” and added, “It sure would be nice to have a drone up there [to track the suspect.]” He also slammed the president’s policy of “leading from behind and criminalizing war.”
Graham, I think, speaks for a large segment of the Republican Party here. Outside of people like Rand Paul, who have been far more circumspect and cautious when talking about the “war on terror” and related issues, most Republicans do indeed believe that the entire nation, indeed the entire world, is a “battlefield” in this war, and that wartime tactics and legal regimes are necessary to fight it. It’s the reason that the Bush Administration was so easily able to justify not only the establishment of the prison at Guantanamo Bay, which to some extent is likely necessary, but also “enhanced interrogation” techniques that we now know clearly crossed the line to torture, rendition of suspected terrorists to CIA black sites in friendly countries (including, according to some reports, countries like Libya) where American agents were free to engage in brutal interrogation techniques without having to worry about legal niceties. Now, they are suggesting that we extend that power not just to terrorists captured on a foreign battlefield, but to American citizens arrested in the suburbs of America’s 21st largest city. If we do that, where, exactly, does it end?
Lindsey Graham and others in the Republican Party would have us believe that this weeks events in Boston were part of a war that began nearly twelve years ago with the attacks of September 11th. At the very least, this judgment is premature because we have absolutely no idea what the real story behind the Boston Marathon attacks actually is. We don’t know if the Tsarnaev brother were motivated by religion, by a political agenda, by an unspecific generalized hatred of the society they’d grown up in based on the fact that they hadn’t achieved what they believed they were entitled to, or by just a desire to cause destruction and pain to people. Even if the attacks were based on some kind of religious/political motivation, we don’t know if they were acting alone or if they were surrogates for others, either domestic or foreign. Ascribing, at this early date, these attacks to a “Global War On Terror” is both premature and, quite obviously, based only on the fact that they are Muslim men. That is clearly not sufficient grounds to strip an American citizen of his rights and throw him in the rat hole that is Guantanamo Bay.
Our legal system has served us well, although admittedly at times imperfectly, for two centuries now. Sacrificing the values it represents in the name of the “war on terror” would be a fatal error.
I certainly took Obama’s “do this right” to mean via the courts.
This is not another “both sides do it” opportunity for OTB.
John,
And unlike the text I quoted I didn’t take Obama’s statement that way either. This will go through the court system.
@Doug Mataconis:
Sorry, I took your “Yes, Mr. President, that’s exactly why we have courts” as having fear me might go the other way.
Let’s throw Lindsay Graham into indefinite detention and see how he likes it.
Does this idiot even understand the term “due process”?
On this, I think we need to look at how extreme political movements provide a framework for the unbalanced. These movements give at-risk individuals exactly the wrong kind of feedback. Intentionally or not, the movements use these people as grist for their mill.
Or as your grandmother might have said, stay away from those people, it’s not healthy.
It’s a shame that Lynne Stewart won’t be available to represent him…
I’m sure some would like this to adjudicated in federal court, primarily for death penalty purposes, however, this case should not be jammed forward as a wartime terrror case. We should resist the temptation to circumvent our perfectly fine regular judicial processes.
@al-Ameda:
If he’s tried as a civilian, it will be in federal court. That is different from being treated an enemy combatant.
I hope someone asks Rand directly about this issue as he’s been slippery on the topic in the past and it could be very revealing.
Lindsey Graham, and his ilk, are a much greater threat to the republic than the Tsarvaev brothers could ever reasonably hope to be.
@al-Ameda:
It’s been pointed out that there’s an open legal question of whether the federal government has the power to impose the death penalty for acts committed in states that have abolished the death penalty (like Massachusettes) even if the federal crimes in question allow for it.
@CSK:
Thank you. You’re exactly right. I certainly did not state my concern clearly – which is that this should not be tried as a wartime case.
Damn it, we need some new old people, the ones we have now are broke. To bad, the alternative is possibly a Democrat.
@Gustopher: I wouldn’t go so far as to say that Sen. Graham is much of a threat to the US given that it’s common wisdom that he can be a complete douche. So his reputation works against him.
However, I’m greatly disappointed to hear this blather from Senator who is supposed to be a Navy lawyer and should therefore bloody well know better.
Doug:
Precisely. Or by something else.
… now listening to ‘I Don’t Like Mondays’ written by The Boomtown Rats as covered by Tori Amos.
@Argon: And I would counter that the Tsarnaev Brothers are no threat to the republic at all, except for how they inspire our worst elements to hurt us.
Yes, a handful dead, a hundred and fifty or so injured, and how many congress critters peeing their pants? We’re a large, strong country, and the Tsarnaev brothers are nothing. The explosion of the fertilizer plant in West, Texas caused more real harm.
The Tsarnaev Brothers could have done more damage had they gone into politics.
Thank you for this excellent post Doug.
@Gustopher: Exactly!!!!!
My own opinion is that we need to revive the practice of outlawing (as it is called in Common Law) or civil death (as it is called in the French Civil Code).
Civil death was a very serious matter, and the French Civil Code was careful that it be applied only after careful judicial procedure. The civilly-dead person was treated as if dead, whether or not he was breathing. The civilly dead could not be either plaintiff or defendant in a lawsuit, could not be a witness, and his will was opened and his possessions devolved to his legatees. And, yes, since no legal action could possibly arise from a civilly dead person, he could be killed without any legal consequence. The person was as good as dead.
I am pretty sure that the common-law practice of outlawing is similar.
There are several advantages to this system. 1. It required warrant from a court, and was taken as seriously as a capital case. After all, the outlawed person was assumed to be about to be killed once the law failed to protect him. 2. Having legal niceties such as the Miranda rights apply to mass murderers may appeal to the legal eagles who tend to read (and write) this blog, but they sap public enthusiasm for these instruments of the law in general. Having such people as bombers and mass murders outside the law allowed for better respect for the protections afforded to those within it.
If the evidence against the suspect is, indeed, overwhelming (as another thread on this blog asserts), then having this person outlawed would be no problem if the institution of outlawing or civil death were still practiced. And, the beauty of it is that no precedent would then be set for how to treat people within the law by the harsh treatment of this person declared to be outside the law.
All of this “enemy combatant” business is just revival of the practice of outlawing, but with one conspicuous difference: it is determined by the executive, not by the judiciary.
Those people, several generations ago, who were instrumental in disestablishing the practice of outlawing and civil death almost surely felt that they were especially enlightened in doing so. They thought they were advancing humanity one step forward. Too bad: with the doctrine of the executive being able to declare people enemy combatants, we have now taken two steps back.
Well said, Doug. For my money, good solid police work has proven far more effective in defending us from terrorism than military action.
It probably never ends. Good post.
I don’t know. The not-czech brothers managed to set off the overreacting crazy-Cheneys of the nation but I suppose one could say that’s a self-inflicted wound. However, I would never want to suggest that the brothers’ damage wasn’t grievous, particularly when faced with a father whose son is dead, whose daughter is missing legs and whose wife was seriously injured, or the mother of two sons who each lost a leg.
Still, in the end, I think terrorists are a peculiar threat to the Republic. Not in the sense of the physical damage they do but in the emotional and unthinking responses they provoke. A harmless woman was assaulted earlier this week for simply being Muslim. Heck, we went to war in a non-9/11-involved country because many were whipped into a fury by fear. Yes, much of the damage is self-inflicted but it’s almost a perfectly predictable response. It’s a button that parties which are willing to commit terrible acts can push to get disproportionate results. Contrast the marathon bombing response to that for the fertilizer plant explosion. More people in the US die in workplace catastrophes than killed by terrorists. And yet we’ll continue to walk by chemical plants with less worry than if we encounter an unattended backpack at a large public gathering. Crap, I know that stats but all my rationality still doesn’t make me insensitive to unattended bags.
Doug wrote:
Would being motivated by religion or a political agenda be sufficient to declare them “enemy combatants”? If so, does that mean the person who, for religious reasons, attempts to kill the abortion doctor or, for political reasons, tries to assassinate a politician could be treated as an enemy combatant?
Yes, he should be tried in a court of law for crimes of mass murder in the first degree, construction and possession of weapons of mass destruction, and high treason.
It must be in a court of law, not a court of loopholes, plea bargains, backroom deals, some sort of insanity plea, or a bunch of technicalities. And it must be a speedy trial, not some circus drawn out for several months because of delaying tactics by slick lawyers.
Good post, Doug.
@ Tyrell
So you are saying that he gets a different flavor of justice than other American citizens?
Does the concept of equal protection under the law mean nothing at all on the right?
@Justinian: Having legal niceties such as the Miranda rights apply to mass murderers may appeal to the legal eagles who tend to read (and write) this blog, but they sap public enthusiasm for these instruments of the law in general. I can’t agree with this at all. I’ve got a half-dozen or people on my Facebook feed – most of whom are not tin-foil hat types – posting about being freaked out by the government “denying his MIranda rights,” and how they see it as a further lessening of our civil liberties and not one providing a positive defense (a few haphazard cites of the public safety exception, but no full-throttled defences).
In fact, this blog is the only place that I’ve seen anyone taking the other position today. I think you’ve got this completely backwards.
@Gromitt Gunn: bah. screwed up my block-quoting and can’t edit.
Well, at least one, possibly questionable British paper, Daily Mirror, is reporting the FBI is running down a 12-member cell associated with these “misunderstood” boys. So that ups the stakes and may explain why some in DC are freaking out.
But I don’t think it means this should leave the regular courts. It would mean it is federal since it would be terrorism.
@ JKB
Well, now you have something new to keep you living in fear. Things are looking up.
@Spartacus: It has not been established or revealed who or what group these two men were working for and under the control of. Could it be that they were brainwashed, programmed, and sent to this country to commit this crime of mass destruction ?
Yes, and it could be they’re space aliens. Better go hide under the bed.
@JKB:
Derp.
http://news.yahoo.com/three-people-being-questioned-connection-marathon-bombings-011936226.html
BTW, that vanity plate is referencing the Harlem Shake. The Daily Mail’s internet presence essentially survives off of Drudge and U.S. wingnut traffic (which helps explain why they’re almost always wrong about nearly everything).
@anjin-san:
The difference between him and other American citizens is that he has a funny name. Nobody was screaming ‘enemy combatant’ at Timothy McVeigh – and he targeted a Federal building.
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Agre with you Doug. The court system will be fine. We really cannot drop our commitments to our values and our systems just because some of us are frightened or because we are attacked.
I think it needs to be realized that this is mostly being driven by those on the right. They are cowards. They need to grow some balls. We fight back. We don’t change our laws, we dont renounce our beliefs. We are a country that responds to crime with law, not lynching. While professing a belief in liberty they are willing to throw it all away when attacked. Second Amendment remedies! Watering the tree of liberty with tyrants! Yet this bunch of badasses turns authoritarian when faced with a teenager with bombs. I guess this is where I should quote Franklin, but I will go with Petraeus.
“- Live our values. Do not hesitate to kill or capture the enemy, but stay true to the values we hold dear. This is what distinguishes us from our enemies. There is no tougher endeavor than the one in which we are engaged. It is often brutal, physically demanding, and frustrating. All of us experience moments of anger, but we can neither give in to dark impulses nor tolerate unacceptable actions by others.”
Steve
Why do Republicans hate America so much?
Especially Butters…who has spent nearly his entire adult life suckling at the Government teet.
@Jeremy R:
We shall see, but reports are the FBI re-arrested the two men.
Good on you Doug. Just want to add that he certainly should be tried in a civilian court, and anyone who would like to see a conviction that can stand up to an appeal sometime before the next geological ice age? Should agree.
As for Graham… If America is a battlefield in the global war on terror…..
I guess he fully supports Obama’s efforts to declare marshall law, dissolve the Senate and House of Representatives, and suspend Habeas Corpus.
BWAAAHAAAHAAAAHAAAHAAHAAAHAAHAHAHAHAHAHAHEEHEEHAWHEEHAW……
Sometimes I just crack me up.
All Americans have a Constitutional right to due process, and this enemy combatant stuff is a slippery slope indeed. Fortunately these Senators are just posturing from what I can tell.
@Tyrell:
Could it be that you and your ilk were brainwashed, programmed, and sent to this country to commit crimes of mass intellectual destruction? Because you are succeeding.
This young man is an American citizen and should be tried in a civilian court of law not as an enemy combatant. He’s no different from Timothy McVeigh. McVeigh got his just punishment just as this young man will.
@Jeremy R: We shall see, but reports are the FBI re-arrested the two men.
If true, that suggests federal law enforcement is capable of handling the crime, just as federal courts are capable of adjudicating it. See: Timothy McVeigh. The origins of the bombers shouldn’t matter as to how the crime is investigated and how any defendants are tried.
It’s a shame to see so many people jumping on the baseless fear wagon. A couple of my liberal friends have suggested on Facebook that we either torture the guy or let the families of the killed or injured have at him. Yes, let’s just abandon the rule of law because it will make people feel better. The Republicans fanning the flames of fear should be ashamed of themselves, but they surrendered their sense of shame eons ago.
I agree with post and most comments, except an unfortunate tendency to suggest it is him being a US citizen that makes him deserve these constitutional rights. I believe (and lawyers can correct me if I’m wrong) that the Constitution offers rights to anyone in the US – citizen or not. Of course, if someone is here illegally they’ve broken immigration law and can be deported but if you live within the borders of the US legally, you get its protections.
After all, the constitution was written by people who had a universal ideal of human rights, and the US (which had very lax or virtually non existent immigration laws for a century or so of its existence) was constructed as a kind of open-ended model of individual liberty, rights, due process, protection from arbitrary government etc to which all were invited and which, in some sense, the founders (inheriting in part the Puritan vision of a city on a hill) constructed as a universal (non-exclusive, non-ethnic) empire of liberty (I know all the problems with this – slavery etc. – but I’m speaking to this one particular point). Citizenship in itself did not bestow these rights – they were given by Nature and Nature’s God etc.
So, while I accept that pointing to his citizenship is a way to discredit those on the right claiming we deny him civilian rights (“he’s a citizen you fools!!”), for those of us who naturally resist this inclination, we might need to remember that the claim to natural rights embodied in the US constitution is even more radical than citizenship. It is probably radical enough to even suggest that even if he were an “enemy combatant” he ought to be given the same rights to an attorney, silence, trial by peers etc., and radical enough to suggest that Gitmo, drones in Pakistan etc. are all contraventions of basic human rights.
Sure, we centrists/liberals/progressives/libertarians can all get annoyed by US citizens being denied their constitutional rights in this war on terror, but the life and rights of a US citizen is not worth any more or less than any other human and US values of liberty and justice for all as universal, transcendent and enduring values are discredited when we seem to make a distinction between “citizen” rights and the rights of others.
@Justinian: You don’t know much about history, do you?
Know what lot of i banniti did after they got kicked out of the city-states of Italy? Hired a bunch of mercenaries and went back after the governments that kicked them out.
It’s much more dangerous having a bunch of i banniti running around somewhere loose, able to get their hands on ammunition, money, guns, whatever….rather than locking them up. And how are we supposed to tell a bannitus from a law-abiding citizen with rights? Tattoo them on the forehead?
We tried it your way in history. It didn’t work. Rome only managed to pull it off (somewhat) by actually physically relocating its banniti to islands or distant lands, where the quickest you could travel was on the back of a horse. Yep, that would really work well in the modern world, where you can jump on a plane and be at the other side of the globe in 14 hours.
Obama can end Linda Graham’s and McPastIt’s battlefield orgasms by simply calling the war on terror ‘over” and transitioning American mindset to the criminal problem it actually is. That would require courage the President may not possess.
We are tired of this battlefield made-up b.s. hooey. Please STFD and STFU, Senators.
@grumpy realist:
In reply to grumpy realist, two posts ago:
The practice of outlawing I am referring to is what this country had a hundred years ago. The old posters, “Wanted: Dead or Alive” — they were of people outlawed by the courts so that killing them didn’t make any difference.
Outlawing is not banishment. And, as you write,
you can tell because the outlawed person has been formally been found so by court of law. Outlawing is virtually a form of death penalty; tantamount to a death penalty in fact.
You are correct that outlawing someone who is not already apprehended turns him into a desperado. Overdoing the practice of outlawing, like any other excess, causes problems. Perhaps the banniti you mention were the result of excessive outlawing.
So far as I can tell, the practice of outlawing or civil death worked reasonably well in this country for over a hundred years, and in Europe for many hundred.
@Justinian:
Hey, Justinian , we’ll just stick to 21st century law if its all right with you. I really think it will get the job done just fine.
There are several questions that must be answered: 1) Were the brothers trained and directed by parties unknown; 2) Were they planning additional bombings and if so where; 3) Who are these parties unknown that may have trained and directed the brothers, and are there more operatives and further plans that we can discover.
I agree that the younger brother should be tried in a court of law, but if there are legal mechanisms that would allow authorities to question him extensively before he is tried in court, such as the Public Safety deferral, or even temporarily charging him to be an Enemy Combatant on the grounds that: 1) there is sufficient suspicion of a link with a terrorist group by the older brother; 2) There are judgements by authorities that the bombings were too carefully planned for the brothers to carry out, and 3) we do have evidence of jihadist writings of theirs on the internet. Thus, we should either clear him from that charge or confirm the charge in a court both by further wide investigation and by qustioning him extensively, We should use such a legal mechanism to the fullest.
Currently, we do not know whether they were directed by a foreign source of terror, so it would be proper to settle that charge satifactorily up front one way or another, say, within six months. Then, and only then, we should read him his rights and try him in a court, preferably a Federal Court.
@Justinian: As said, you don’t know much about history. I banniti are exactly what you are talking about and how the whole “outlaw” custom was implemented in places like Renaissance Italy. (It was a weird mixture of implementation from Germanic law and Roman law, but yes, they had it.) Go read Bartolus on it.
And you still haven’t explained how we’re supposed to determine that individual X is actually the funny-looking guy on the poster or just a look-alike. I wonder how many innocent people got killed in the West due to the necktie squads running around looking for someone who sorta looked like what they saw on the poster. So that’s what you want? a bunch of gun crazy nuts blasting away at anyone who looks slightly like the character described?
I’d rather place my trust in the professionals rather than a bunch of idiots hopped up on violence, mob rage, and whisky, thank you.
In reply to grumpy realist, immediately above:
The historical record certainly has a lot in it, and quite frankly I did not know that outlawing had so much dark side to it in history as you assert. If you outlaw people for failing to appear in court on charges of felony (a common practice back then), then you do create a race of desperados or “bandits.”
Perhaps I was taken with the concept of civil death by reading the French Civil Code. The Code is, after all, very elegantly worded. And I had never known outlawing to be a problem in France, though I do not doubt that it was in Italy.
I do not know either how many innocent people were killed by being mistaken for men on “Wanted: Dead or Alive” posters, but my own personal surmise is zero. (Actually, it is one: I read an article which gave evidence to support the assertion that the F.B.I. killed an innocent man and said it was John Dillinger. Somewhat similarly to the present case, there was a lot of pressure from Congress to get the F.B.I. to prove its worth.)
Whether we like it or not, the general idea of outlawing is making a resurgence under the guise of “enemy combatant.” For this reason, I prefer that we get the concept firmly under judicial review if we cannot eliminate the concept entirely (and I do favor eliminating the concept of “enemy combatant” entirely).