White House: Bombing Suspect Will Not Be Tried As “Enemy Combatant”

The White House made clear today that it will not seek to classify Dzhokhar Tsarnaev as an enemy combatant:

White House press secretary Jay Carney said Monday that Dzhokhar Tsarnaev will not be classified as an “enemy combatant,” despite pressure from some congressional Republicansto do so. Speaking during his daily press briefing, his first since the Boston bombing, Carney said Tsarnaev will be tried in civilian court.

Democrats, along with at least one leading voice of the GOP’s libertarian wing, have resisted the “enemy combatant” argument.


To this point, Tsarnaev has not been read Miranda rights, but so far the stated justification is the so-called Public Safety Exception, which allows law enforcement to delay Mirandizing a suspect until it can be determined whether he or she knows of further threats to public safety. Tsarnaev is communicating in a limited fashion with investigators, but remains in serious condition and has a gunshot wound to the throat, authorities said.

Given Tsarnaev was a U.S. citizen engaged in terrorism on home soil, there continues to be disagreement about whether he can be held as an enemy combatant — a term generally used for someone acting on behalf of a state with which the United States is at war.


Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) agreed, saying Sunday that Tsarnaev was not eligible for enemy combatant status.

“I do not believe under the military commission law that he is eligible for that,” she said on “Fox News Sunday.” “It would be unconstitutional to do that.”

Feinstein is, from what I’ve been able to read on the subject, correct here. The definition of what an “enemy combatant” is when a U.S. citizen is involved was narrowed in a law past last years by Congress in response to objections from both Republicans and Democrats that the existing definition was too broad and threatened to deny citizens their rights. Under the current definition as I understand it, it’s virtually impossible for a citizen to be designated an “enemy combatant” unless there is direct evidence of a link between them an al Qaeda or an al Qaeda linked group. There isn’t any such evidence in this case.

FILED UNDER: Crime, Law and the Courts, National Security, Terrorism, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Caj says:

    Absolutely right. He’s an American citizen and should not be tried in a military court.

  2. CSK says:

    A sealed complaint has been filed against him.

  3. CSK says:

    Whoops…the complaint has just been unsealed:

    One count of using and conspiring to use a weapon of mass destruction against persons and property within the United States, resulting in the deaths of three people and injuries to others.

    Nothing about the murder of the police officer and the wounding of another in Cambridge, plus the kidnapping of the carjacking victim, and the shootings Thursday night in Cambridge. But perhaps those charges would be handled by the district attorney for Middlesex County. I wonder if they’ll charge him also?

    The federal charge carries the death penalty, life imprisonment, or prison for a shorter span of time if he’s convicted.

  4. rudderpedals says:

    On the other hand it’s possible that under torture his questioning if it were done in Gitmo would eventually, if desired, lead to whatever kind of ties to al qaeda anyone could ask for and bootstrap a combatant claim after the fact.

  5. MM says:

    Somebody requisition a new pair of underwear for Lindsay Graham.

  6. Tyrell says:

    What if it is found out that there are connections to terrorist groups or foreign governments ?
    There is at least one precedent for citizens being tried by the military: the infamous Booth conspirators trial of 1865.

  7. anjin-San says:

    @ tyrell

    I urge you to look at a calendar and see what year it is.

  8. Jenos Idanian #13 says:

    Oh, well. Woulda been nice, but it was a hell of a long shot anyway.

    Anyone wanna place any bets on, if he ever walks free, which will be the first college to offer him a teaching position?

  9. wr says:

    @Jenos Idanian #13: And Jenos wins Most Loathesome Person on the Internet yet again!

  10. matt bernius says:


    @Jenos Idanian #13: And Jenos wins Most Loathesome Person on the Internet yet again!

    And @Jenos wins because he gets what he wants: attention.

  11. Jenos Idanian #13 says:

    @wr: For what, this time? For saying, casually, that I wouldn’t have minded the terrorist being treated like a terrorist, but not really getting too worked up about it, or noting how several former bombers are now highly-regarded members of academia?

  12. anjin-san says:

    I’ll repeat what I have been saying for the last week or so. (since James pointed out that I am guilty of feeding the troll)

    Jenos is the cyberspace equivalent of the drunk at the end of the bar who won’t shut up and won’t go away. I know the type all too well from my bartending years.

    He is desperate for attention. If he stops getting it, he will eventually move on and ruin some other blog.

  13. Jenos Idanian #13 says:

    @anjin-san: Time heals all wounds. Even unrepentant former terrorists can be “rehabilitated” to become respected members of society.

    As long, of course, as they meet certain criteria.

    If the Tsarnaevs had been smarter, they’d have targeted something affiliated with the right. A Tea Party rally, an anti-abortion event, an NRA convention, a gun show — something like that.

    Oh, and they’d have been white and privileged. If they’d done that, they could have had a chance at redemption. Like Obama’s former friends and neighbors, Bill Ayers and Bernardine Dohrn, or Professor Kathy Boudin.

    The main difference between them and the Tsarnaevs? The Tsarnaevs were more competent in bombing, and less competent in escaping.

    Instead, one’s dead and another (God willing) will be. Like Timothy McVeigh, another of their brethren.