A row has broken out over whether the Obama Administration is violating the legal due process of Boston terror suspect Dzhokhar Tsarnaev by not reading him his Miranda rights before questioning. The more relevant question for the safety of the U.S. homeland is why the Administration has declined to designate him as a terrorist enemy combatant…

Boylston Street sure looked like a battlefield on Monday, and so did Watertown on Thursday night… The vital distinction for public safety is between common criminals, who deserve due process protections, and enemy combatants at war with the U.S., wherever they are.

As for due process, the greatest danger to liberty would be to allow more such attacks that would inspire an even greater public backlash against Muslims or free speech or worse. The anti-antiterror types on the left and GOP Senators who agree that the U.S. isn’t part of the battlefield are making the U.S. more vulnerable.


Senate Armed Services Committee Chairman Carl Levin (D-Mich.) countered he’s “not aware of any legal basis at this point for such a designation” of enemy combatant status in this case.

“I am not aware of any evidence so far that the Boston suspect is part of any organized group, let alone al Qaeda, the Taliban, or one of their affiliates — the only organizations whose members are subject to detention under the Authorization for Use of Military Force, as it has been consistently interpreted by all three branches of our government. In the absence of such evidence I know of no legal basis for his detention as an enemy combatant,” Levin continued. “To hold the suspect as an enemy combatant under these circumstances would be contrary to our laws and may even jeopardize our efforts to prosecute him for his crimes.”…

[Peter] King said people need to get off the argument that the criminal courts system is adequate because it’s successfully prosecuted terrorists before. “I don’t worry about conviction. I don’t worry about a conviction. He’s going to be convicted,” he stressed. “I want the intelligence so we can save American lives. And that can only be done I believe, effectively, if he’s treated as an enemy combatant” without access to a lawyer.

“When the public safety exception expires and it will here soon, this man in my view should be designated as a potential enemy combatant and we should be allowed to question him for intelligence gathering purposes to find out about future attacks and terrorist organizations that may exist that he has knowledge of. And that evidence cannot be used against him in trial. That evidence is used to protect us as a nation,” Graham said on CNN’s State of the Union.


Note that the law doesn’t characterize every terrorist an enemy combatant, only those who are involved with specific, identifiable enemies: Al Qaeda and the Taliban. Someone who commits an act of terror on behalf of any other group or movement cannot be designated an enemy combatant. It doesn’t matter if that other group is made up of leftist revolutionaries or radical jihadists, the law only permits the enemy combatant designation for Al Qaeda, the Taliban, and their minions.

As of today, there is no publicly available information to suggest that one or either of the Tsarnaevs were trained by Al Qaeda or the Taliban, received any material support from Al Qaeda or the Taliban, or in any way associated with those groups. They may have shared with Al Qaeda and the Taliban a hatred of America and a desire to kill our citizens, but that’s not enough under federal law…

The administration could do what the Bush Administration did and declare a new, untested legal status and deny Tsarnaev a lawyer and access to the courts. It would take several years before the courts ultimately sorted out whether this is appropriate, and presumably some information might be gained from him about other terrorist activities in the meantime. Yet the results of the Bush approach were less than ideal. Two terrorists, Yasir Hamdi and Jose Padilla, were subject to what the federal courts indicated was unconstitutional treatment, and both received much shorter sentences than these terrorists warranted. Indeed, Hamdi today is living abroad, free of U.S. detention.


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.


The best solution would simply be for the Supreme Court to change course and allow the admission of all evidence gathered as a result of a civilized compulsory interrogation. Under current law, a suspect can be forced to hand over a blood sample or a fingerprint, because these items are reliable physical evidence, and they don’t violate Fifth Amendment, because blood and prints are not “witnesses,” strictly speaking, and because they are reliable in a way that pure words are not. The same logic holds for admitting all fruit and leads generated by compelled interrogation.

But even if the court won’t go that far, it should hold that in compelled interrogations involving serious and ongoing threats to public safety, evidence and leads obtained by interrogation of the suspect should always be admissible. Let’s bring coffee, donuts, and yes, lawyers, into the interrogation room. But the law should also require the suspect to answer all questions under pain of contempt—meaning he can be jailed if he refuses—and under penalty of perjury. His lawyer should understand that her job is not to aid the suspect in lying or stonewalling. Suspects will of course be tempted to lie in some situations. But even lies can often provide cues and clues to trained investigators, and interrogators should also be able to give lie-detector tests with the oversight of a judge. This is the right balance for public safety and a defendant’s rights—and the Fifth Amendment, properly understood, allows it.




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