Of Course Dzhokhar Tsarnaev Is Not an Enemy Combatant

John McCain and Lindsey Graham’s ludicrous, harmful campaign to get him declared one.

Dzhokhar Tsarnaev, 19, suspect #2 in the Boston Marathon explosion.

Sen. Lindsey Graham pushed for Boston Marathon bombing suspect Dzhokhar Tsarnaev to be declared an enemy combatant.

Photo by Alex Wong/Getty Images

A group of Republican senators, led by Lindsey Graham and John McCain, spent the weekend clamoring for Boston bombing suspect Dzhokhar Tsarnaev to be held as an enemy combatant. This is not going to happen.

The White House said so Monday, for a few excellent reasons. For starters, it’s probably against the law. If Obama decided to flout the law by taking this step anyway, it would be a truly scary grab for executive power. It would also be exactly the wrong message to send the world about American justice—especially if you think, as surely many Americans do, that Tsarnaev deserves the death penalty.

Graham in particular should know this, since he helped write the 2009 law that says Tsarnaev may not be tried as an enemy combatant and thus points away from holding him as one. But that’s not stopping Graham and the others from trying to score terror points—and, of course, trying to make the president appear weak. This isn’t about actually fighting terrorists. It’s about running for election.

To review the legal history: After 9/11, Congress declared that the United States was engaged in an armed conflict against al-Qaida and associated terrorist groups. Members of those groups could be designated enemy combatants and were not subject to the traditional rules governing prisoners of war. That status is how the Bush administration sent hundreds of people captured in Afghanistan and elsewhere to Guantanamo, interrogated them without lawyers or the usual human rights, and in some cases tortured them. (John McCain was one of the most important voices to speak out against this cruel and degrading treatment, but never mind.)

There is, of course, a huge and incredibly heated debate about how much useful intelligence the CIA and the military extracted from the enemy combatants, waterboarding and all. Set that debate aside for a minute. Set aside, also, that Guantanamo still holds 166 prisoners whom the president and the courts don’t know what else to do with, and 84 of them are on a hunger strike after recent tensions with their guards. What matters, legally speaking, is that in 2011 Congress basically said, much as it had a decade earlier, that the president can detain “al- Qaida and Taliban fighters and those from allied forces.” 

None of the evidence so far suggests that Dzhokhar Tsarnaev or his older brother, Tamerlan, are connected to al-Qaida or any group associated with it. To the contrary. Authorities keep stressing that the brothers appear to have acted alone. Yes, Tsarnaev and his brother are Muslims, and at some point they were radicalized, but Congress has never said that we are fighting Muslim extremists everywhere.

It’s also important that the key 2011 provision in which Congress said whom the president can detain “exempts U.S. citizens entirely,” as Benjamin Wittes explained at the time. Similarly the 2009 Military Commission Act—which Graham wrote—states that American citizens may not be tried by military commission.

Graham acknowledged as much in his press release: “As to any future trial, if this suspect is an American citizen he is not subject to military commission trial.” But he says this doesn’t matter for purposes of detention. Here’s his proposal: Throw Dzhokhar Tsarnaev into a military brig for some prolonged period of time, once his wounds heal sufficiently, and then hand him over to military and CIA interrogators, without a lawyer or any of the other rights criminal defendants are entitled to in American courts. Then turn him over to the court system later.

Graham asserts that the courts would go along with this approach, even though it’s not been used before, and Congress hasn’t authorized it. I’d like to think he’s wrong. Graham’s approach also insults the interrogation capabilities of the FBI for no particular reason. And it fails to address what happens if Tsarnaev refuses to answer questions: McCain and Graham are decent enough to say that Tsarnaev “must be humanely treated.”

It’s the American way to extend to whatever suspect is currently the most hated man in the country the protections of our laws. Yes, it’s important to ask Tsarnaev the questions that could yield valuable intelligence or could prevent future harm. The FBI should ask him who influenced or perhaps trained him and his brother. They should ask him the whys and the hows. I’d rather see this happen after Tsarnaev has been read his Miranda rights or with the provision that much of what Tsarnaev says can’t be used against him at trial. (There’s plenty of evidence against him without his statement, after all.) If you don’t like my idea, here are three other proposals, from law professors Eric Posner and Akhil Amar and CBS’s Andrew Cohen for how to interrogate him legally, within the boundaries of the ordinary justice system.

The federal courts can and will sort this out, as they have many times since 9/11. Almost 500 times, to be exact—that’s the number of convictions for terrorism crimes since the attacks on the World Trade Centers. The number of convictions before military commissions, on the other hand, is just seven. (More related myths and facts here, from Human Rights First.)

That takes us back to Guantanamo and all the problems that have arisen there. In the two cases in which the government asked to indefinitely detain a U.S. citizen as an enemy combatant, it ended up backing down each time. Yaser Esam Hamdi was an American captured on the battlefield in Afghanistan carrying a weapon. After the Supreme Court said he had some rights to have his case heard by a federal court, in 2004 the Bush administration sent Hamdi back to Saudi Arabia, where he’d been raised. Then there’s Jose Padilla, an American held as an enemy combatant after being arrested in Chicago. After years of legal fighting, including accusations that Padilla had been subjected to stress positions and sleep deprivation tantamount to torture—and seriously psychologically harmed by prolonged solitary confinement—the Bush administration ducked a Supreme Court ruling and transferred Padilla to the civil courts.

Compare those sorry episodes with the straightforward and successful prosecutions of Timothy McVeigh, the Oklahoma City bomber, and Eric Rudolph, the bomber at the 1996 Atlanta Olympics. There was no move to declare either man an enemy combatant, or take away their right to a lawyer, or remove them from the federal courts. Both received the procedural protections that ensure the right to a fair trial for all of us. Rudolph pled guilty and is in prison for life. The same is true of Faisal Shahzad, who tried to bomb Times Square; Richard Reid, the attempted shoe bomber; and Umar Farouk Abdulmutallab, the attempted Christmas Day bomber.

The fate of McVeigh is especially instructive. He was convicted on all 11 counts. The jury recommended the death penalty. Four years later, McVeigh was executed. McVeigh’s case showed the world that terrorists can’t snatch from the United States our tradition and belief in justice. Dzhokhar Tsarnaev was indicted Monday on charges that also carry the death penalty. If he is executed, it should be with the same attention to fairness. That’s how we win this war.

Read more on Slate about the Boston Marathon bombing.