The “Enemy Combatant” Travesty

Now that Boston bombing suspect Dzhokhar Tsarnaev has been apprehended, it’s a good time to revist these tweets from South Carolina Sen. Lindsey Graham.

According to early reports, the administration isn’t considering this. More importantly, though, what is Graham talking about?* Earlier in the week, when I was part of a scrum of reporters asking Maine Sen. Susan Collins what she thought about the case—before we had the name of a suspect—she said this:

If he’s an American, obviously, then the constitutional protections pertain. If he is a foreign national, in my view, then he should be held by a military tribunal.

Well, like it or not, he’s an American. Even if the Obama administration embraced the concept of a war-on-terror enemy combatant, what evidence is there to suggest that Tsarnaev is one? The 2001 authorization of force, broad at it is, authorizies the president:

to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Does that description apply to a 19-year-old naturalized citizen who (allegedly!) committed an act of terror that no international organization took credit for?

The “military tribunal” and “enemy combatant” crowd will have loud megaphones. If they’re right, good for them; if they’re wrong, they won’t lose their microphones or pundit cards. That’s fine. We can ignore them for now. This is a night for Boston and the rule of law.

*I earlier wrote that the suspect hadn’t beeen Mirandized, basing this on a mistaken TV report. Politico’s Josh Gerstein was first (I saw) with the news that the “public safety exemption” was invoked to skip Miranda for now.

Read more on Slate about the Boston Marathon bombing.