John McCain and Lindsey Graham’s Ludicrous, Harmful Campaign to Get Dzhokhar Tsarnaev Declared an Enemy Combatant

The law, lawyers, and the court.
April 22 2013 6:26 PM

Of Course Dzhokhar Tsarnaev Is Not an Enemy Combatant

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

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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.

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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.

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