The "Enemy Combatant" Case Still Doesn't Make Any Sense

Reporting on Politics and Policy.
April 23 2013 12:41 PM

The "Enemy Combatant" Case Still Doesn't Make Any Sense

Sen. Lindsey Graham and an unsurprising coalition of Republicans have issued a new letter making the case that the Boston bombing suspect can be tried as an enemy combatant. See if you're convinced:

American citizens who take up arms against our nation or collaborate with our enemies have been held as enemy combatants.  This is well-established principle of American jurisprudence and authorized by congressional statute.  (“There is no bar to this Nation’s holding one of its own citizens as enemy combatant.” -- Supreme Court decision Hamdi v Rumsfeld)

This is an extraordinarily broad reading of Hamdi. The 2001 authorization of force made official a war between the United States and terrorist organizations/state sponsors who could be tied to the 9/11 attacks. Yaser Esam Hamdi was an American citizen caught on the battlefield of Afghanistan, by the Northern Alliance. How do you stretch that case far enough to cover Tsarnaev?

Anyway, via HuffPost, I see that someone finally got a chance to ask Rand Paul about this. In the Senate today, I asked Armed Services Chairman Sen. Carl Levin to deal with the Graham theorem.

"It's pretty clear to me that as of right now there's been no evidence presented to the public that would fit them under the authorization for military force," said Levin. "It's in everybody's interest, if we're going to be credible in going after enemy combatants -- which I believe we should, and can, including Americans who join foreign armies -- in order to do it, you've got to follow the rules. There needs to be authority. We put authority in the AUMF, it's specified, and it so far doesn't fit this case. We're going to undermine our own credibility in going after enemy combatants, and detaining people who are enemy combatants, if we try to apply "enemy combatant" status to every terror attack or every criminal attack.

David Weigel is a Slate political reporter. 


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