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.