Tsarnaev: Accused criminal, or enemy combatant?

The Obama administration will treat Dzhokhar Tsarnaev as a “common criminal,” not as an enemy combatant who waged war against Americans.

Now that the streets of Boston are safe again, said The Wall Street Journal in an editorial, the Obama administration has decided to treat the only surviving suspect in the terror attack, Dzhokhar Tsarnaev, as a “common criminal.” Rather than being declared an enemy combatant who waged war against Americans—killing three Boston Marathon spectators and executing a police officer in Cambridge—he will instead be prosecuted through the criminal justice system. This is a foolish mistake. Yes, the administration did use the “public safety exception” to the Miranda rule, and sent a special team to interrogate Tsarnaev about possible connections to other Islamic extremists before telling him of his legal right to remain silent and get an attorney. But why give an accused terrorist these rights at all, instead of treating him like a prisoner of war? “Boylston Street sure looked like a battlefield” after the marathon bombing, and so did Cambridge during the ensuing manhunt and firefight. As Republican Sen. Lindsey Graham of South Carolina said this week, “We’re at war. This idea that the only way we can question [Dzhokhar] about national security matters is to go through his lawyer—that is absolutely crazy.”

Graham should know better, said Emily Bazelon in Slate.com. Dzhokhar is a U.S. citizen, and the 2009 Military Commissions Act—which Graham wrote—specifically forbids military trials of U.S. citizens. An “enemy combatant” has to be a foreign national associated with al Qaida and associated terrorist groups. For Obama to designate Dzhokhar an enemy combatant in defiance of the law, and send him to some hellhole for prolonged interrogation, “would be a truly scary grab for executive power.” It would also be completely unnecessary, said Erwin Chemerinsky in the Los Angeles Times. The federal court system has successfully prosecuted and jailed nearly 500 terrorists, while military commissions have gotten only seven convictions. In fact, our criminal justice system has been prosecuting terrorists for more than a century, from the anarchists of the early 1900s to Oklahoma City bomber Timothy McVeigh. Yet whenever there is some serious threat, “people have proposed abridging civil liberties.” Those panicky demands must be refused. “There is no exception in the Constitution for especially horrible crimes or for ones that can be labeled terrorism.”

Treating a “sadsack” terrorist like a captured soldier only glorifies him and “may make him a hero to other wannabes,” said Jay Bookman in AJC.com. Our criminal justice system identified, chased down, and caught the Tsarnaevs in a matter of days. Let that system, “and not the U.S. military,” finish the job. The Tsarnaev brothers may have been coldhearted killers, and “they were certainly enemies of the people of the United States,” said Michael Daly in TheDailyBeast.com. But the people they stand accused of murdering—including an 8-year-old boy—“did not die in combat. Theydied in a crime.”

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The Tsarnaevs evidently did not appreciate the U.S. Constitution and the freedoms it protects, said James Picht in The Washington Times. In fact, they exploited those freedoms to commit terrible acts. But it would be a defeat for us all if we let those acts negate our country’s rule of law. If Dzhokhar Tsarnaev is convicted, “let’s hope that it’s by the book, and that he goes to his death or a life in prison knowing that he got what he deserved from a country that deserved much better from him than he and his brother gave it.”

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