Fact-checking GOP Claims That Tsarnaev Should Be Designated an Enemy Combatant

Last updated on April 24th, 2013 at 01:10 pm

Even before we knew the Tsarnaev brothers were suspects in the Boston bombing, the GOP narrative to designate the person or people responsible for that act of terror as enemy combatants was apparent.

Prior to law enforcements release of the right pictures  (vs. the ones released by various news outlets earlier in the week) of the their suspects (vs. Fox et al’s suspects)  in this horrible crime and prior to Dzhokhar Tsarnaev’s capture, Susan Collins started the ball rolling when she said,

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The question is: What do we do once we do capture the individual? How’s he treated? If he’s an American, obviously, then the constitutional protections pertain. If he is a foreign national, in my view, then he should be held by a military tribunal and he should not be read his Miranda rights as [the Christmas Day Bomber] was.

Collins was wrong on a variety of points, beginning with the notion that the test for whether to Mirandize rests on the citizenship of an accused.  However, she was also wrong regarding legal basis on which an individual can be designated an “enemy combatant” and therefore be tried by a military tribunal. She was wrong before Tsarnaev was captured and she is wrong on the facts as know them now.

At the time the Senator made her comments, we didn’t know several facts. We didn’t know if the bombers were citizens of the United States or not.  Since we didn’t know the location of the suspects, we didn’t know if they would be captured within the United States or abroad.  We also didn’t and still do not know if either or both of the suspects have ties to Al-Quaeda or its allies.

When Lindsey Graham tweeted that the suspects shouldn’t be mirandized, and should be designated enemy combatants, we still didn’t know where the surviving Tsarnaev brother was.  However, the available information suggested that he would be captured within the United States.  We also knew that Dzhokhar Tsarnaev is an American citizen. While Graham didn’t go so far as to suggest that being Mirandized is dependent on one’s citizenship, he did assert that the suspect should not be Mirandized and should be sent to a Military tribunal, without knowing IF there was a legal basis to do so.

As a former JAG, Senator Graham should have known better, even if Collins, McCain et al didn’t.  Not that facts ever matter to the GOP, but the available facts indicate two reasons that Dzhokhar Tsarnaev doesn’t fit the legal criteria on which an individual can be designated an enemy combatant.

First, Tsarnaev is an American citizen.

The only way that can change is if Tsarnaev is stripped of his U.S. citizenship.  That can only happen if there is proof that he lied on his citizenship application.  At the moment, the closest to a basis to strip Tsarnaev of his citizenship is conjecture that perhaps he didn’t really intend to protect the United States from enemies foreign and domestic at the time he signed his application and/or when he took the citizenship oath. Conjecture is miles away from proving what Tsarnaev was thinking at the time he signed the application. Yet again when he took the citizenship oath, let alone proving that he lied on his citizenship application.

At the time of the crime and at the time of Graham’s tweets, Tsarnaev was an American citizen.&#160. Even if he is subsequently stripped of his citizenship, he was a citizen at the time of the crime.  Therefore,for the purpose of trying him the citizenship that he had at the time he allegedly committed this crime applies.  Since Tsarnaev was an American at that time, and remains so, he enjoys all the constitutional rights that other American citizens have.

This matters considering that in Hamdi v. Rumsefeld, the SCOTUS concluded: while an American citizen can be designated an “enemy combatant” that citizen must have the right of due process and they must have the ability to challenge that designation before an impartial authority.

Second, even if Tsarnaev isn’t a citizen or is eventually stripped of his citizenship, he was captured within the United States.  That fact will not and cannot change, regardless of the outcome of the ongoing investigation.  The same problems  that arise with the prospect of designating American Citizens as “enemy combatants” also apply by virtue of the fact that Tsarnaev was captured within the United States.

Even if Tsarnaev’s citizenship doesn’t bar designation as an “enemy combatant”and the fact that he was captured within the United States doesn’t bar that designation; the currently available facts provide no evidence that he has ties to Al-Quaeda or its allied organizations.

As Lawfare ;points out,

 But not every terrorist with a bomb is an enemy combatant whose military detention is authorized by law. Some are just killers with bombs. Under the AUMF as interpreted by the courts, and under the NDAA as passed by Congress, the administration is authorized to hold in military detention only those who are “part of” or “substantially supporting” Al Qaeda, the Taliban, or associated forces.

The available facts suggest that the Tsarnaev brothers acted alone, which means that there is absolutely no legal basis on which to hang the “enemy combatant” designation alone.  Even if the ongoing investigation uncovers evidence that Tsarnaev has ties to Al Quaeda, the Taliban or their associate forces, that alone is insufficient to designate Tsarnaev as an “enemy combatant.”

In short, when the President stated that Tsarnaev would be tried in Civilian Court, his decision was based on the facts and the applicable law.

As my colleagues pointed out in several posts, the Republican Party’s leading goofballs in this matter are hanging their logic of  the few facts we do have.  The Tsarnaev brothers are Muslims.  Based on the available information they appear to be responsible for an act of terror that killed 3 innocents and injured dozens more innocent people.  Hence, the Republicans see this as an golden opportunity to try to reclaim ownership of national security issues.

To that end, the Republican Party would like to resurrect the Islamophobia that was prevalent following 9/11.   That and other elements of their political agenda are in themselves enough reason to condemn what can only be called irresponsible  and repulsive statements by several Republican Senators, one of whom is also a former JAG.

More disturbing than the odious political motives behind Graham et al’s calls for designating Tsarnaev as an “enemy combatant” are the legal implications that would come with allowing the designation based on the criteria they suggest.

According to Collins, foreign nationals who are accused of a crime shouldn’t have the right to counsel or the right to remain silent. By that logic, and in direct contradiction to the constitution, those legal protections would be converted to privileges based on citizenship, rather than as the civil rights as they were intended to be. While Graham also suggested that Tsarnaev should not be Mirandized, he at least avoided suggesting that Miranda rights should be based on citizenship.  (Though, I’ll concede it’s possible that he shares Collins’ sentiments.)

Since learning that Tsarnaev wouldn’t be Mirandized based on the public safety exception, I’ll concede understanding, if not fully embracing, the legal basis for that decision.  However, it cannot be emphasized enough that the legal basis was the public safety exception – not the citizenship of the accused.  Moreover, the public safety exception, only applies for 48 hours – not indefinitely.

Collins, Graham et al, also suggested that without knowing if there are ties between the Tsarnaev brothers and Al Quaeda, the Taliban and their allies, they should be designated “enemy combatants”  The implication of that statement suggests that anyone who is a simple murderer albeit with bombs (still a horrific crime, but is very different from terrorism) can and should be tried  under the standards of military law by a Military Tribunal.  That removes other rights including:

• the lawyer/client privilege.
• While juries in civilian court can only convict with a unanimous verdict of guilty, a conviction can occur with a guilty verdict comprised of only 2/3 of the officers on the Military tribunal’s panel.
• The Presiding Officer decides what portions of the evidence against the accused, the accused can know about and therefore challenge.
• Proceedings at a Military Tribunal do not have to be public
• The accused can only choose legal representation from the military’s attorneys or civilian attorneys who are eligible for security clearance.
• it is possible to admit evidence that would be seen as tainted in a civilian court such as evidence obtained through torture.
• Even if an individual is acquitted by the Tribunal that is no assurance that they will regain their freedom.

These significant differences between the Military Tribunal and the civilian legal system are disturbing enough even if one could accept them  in cases of people with ties to Al Quaeda, the Taliban and their allies. However, Graham et al want to expand the use of tribunals to include people without ties to outside terrorist organizations, (regardless of citizenship) and based on Collins’ comments to anyone who is a foreign national and who kills an American.

What about the reality that sometimes people who are charged with horrific crimes by bomb, are not the guilty party – like Richard Jewel.  Under these rules, an acquittal despite a skim milk set of legal protections, doesn’t necessarily mean the accused individual, regardless of citizenship, regains their freedom.

How far down the slippery slope of violating the constitution they say they love do these “patriots” intend to go?

Moreover, if the Republican party is truly concerned about national security, why did they support the NRA’s objective of making it more difficult to pinpoint and apprehend terrorists?   If they focused on real solutions, rather than simply looking for new civil liberties to violate, the Republicans might even be useful.

Image from: ventism

Adalia Woodbury

Former contributor.