Terrorists Dzhokhar and Tamerlan Tsarnaev were responsible for the bombing in Boston last week that killed 3 (including an eight-year-old boy) and injured almost two hundred. Then they killed an MIT campus police officer and critically wounded another policeman in a wild chase that ended in the death of Tamerlan and the arrest of Dzhokhar.
Shortly after Dzhokhar’s arrest, several Republican lawmakers, including John McCain and Lindsey Graham, called for him to be denied a defense attorney and treated as an enemy combatant. But as of this morning it appears that he will be formally charged and tried through the criminal justice system. A Department of Justice official is saying that he may be charged as early as today. There is worrying evidence that the quality of the Obama/Holder Justice Department’s investigation of the older Tsarnaev brother two years and the bombings, but this is one thing they got right. Even Lindsey Graham walked back his comments and said that Dzhokar should be tried in civilian courts.
The detainee program, and the executive branch’s power to detain Al Qaeda and Taliban fighters is crucial to our security. But every person detained through that program was captured abroad in a war zone. That’s why they’re enemy combatants, and that’s why they don’t get access to our criminal justice system and all of its attendant benefits. The Constitution does not apply outside the United States with the same force that it applies here. But it does apply here, and the Supreme Court has never—and hopefully will never—hold that anyone, but particularly an American citizen, captured on American soil when no war is being fought here can be held as enemy combatant.
If you disagree, I urge you to think through what you’re suggesting. Classifications of enemy combatants and determinations about where and how long to detain them are made entirely within the executive branch.* In other words, Obama and Holder, the men who brought you Fast and Furious and who urged investigation of Tea Party members under the “justification” that they might be plotting violence, could seize any American citizen, even in the United States, claim they have evidence he is an enemy combatant, and then ship him off to some foreign prison like Bagram Air Force Base and detain him there indefinitely. The detainee would not have access to a lawyer and could never have his detention reviewed by a judge.
No doubt they could use that strategy to harass, and maybe to lock up forever, Tea Party and conservative leaders. How long do you think it would take for them to start abusing that massive grant of executive power? Do you really trust Obama and Holder to use it well?
*Sometimes that is not the case when detainees are held at Guantanamo Bay, but only because the Supreme Court has decided that Guantanamo Bay is basically an extension of American territory.