by Travis Normand

I heard a short audio clip on NPR yesterday concerning whether or not Dzhokhar Tsarnaev should be charged (or treated) as an “enemy combatant.”  You can listen to the audio of this discussion HERE (on NPR).

Notwithstanding the debate on whether or not Tsarnaev should be treated as an enemy combatant, White House press secretary Jay Carney says Tsarnaev will not be charged as an enemy combatant and instead will face trial in a federal court.

The reasoning Carney gives has nothing to do with whether or not Tsarnaev meets the criteria of being an enemy combatant but instead focuses on the fact that “when it comes to United States citizens, it is against the law to try them in military commissions.”  Carney’s answer is an interesting one considering that many are calling for Tsarnaev to be labeled as an enemy combatant for intelligence gathering purposes only and that he should still be tried in Federal Court (and not in a military commission).  In other words, if Tsarnaev can be designated as an enemy combatant, and still be tried in Federal Court, then Carney’s answer doesn’t make much sense.

In support of labeling Tsarnaev an enemy combatant, Ann Coulter (polictical commentator) appeared on Fox News and stated that the Supreme Court has not declared it illegal to try U.S. citizens in military tribunals (see the accompanying video at around 5:50 mark), referring to what sounds like case law as her justification.

Also, Senator Lindsey Graham laid out his case on April 22 (see video below) as to why Tsarnaev should be held, and tried, as an enemy combatant: (WeeklyStandard.com)

Republican Sen. Lindsey Graham and other lawmakers, though, were not suggesting he be tried before a military commission. Graham, rather, was suggesting that the administration label him an “enemy combatant” for purposes of intelligence gathering. He said Monday afternoon that he “strongly” disagrees with the administration’s decision to rule out that possibility.

“I believe such a decision is premature, it is impossible for us to gather the evidence in just a few days to determine whether or not this individual should be held for questioning under the law of war,” Graham said.

He said information gathered under enemy combatant status would never be used in a court of law, but he added, “The last thing we should do is limit our ability to gather intelligence.”

Graham earlier conceded it’s not yet clear whether he could qualify as a combatant — to do so, the government would need to prove he was linked to Al Qaeda or an Al Qaeda-linked group.

Read more: http://www.foxnews.com/politics/2013/04/22/white-house-says-boston-bombing-suspect-will-not-be-treated-as-enemy-combatant/#ixzz2RJ7VI9mR

One of the major points in favor of labeling Tsarnaev as an enemy combatant is the ability to interrogate him and possibly retrieve valuable information regarding terrorist connections and possible future attacks.  While such a tactic may be valuable in this situation, I would think we should caution against using the fact that he may possess information as our sole basis for labeling him as an enemy combatant.  In other words, do we want to set a precedent that says simply having information is enough to get you labeled an enemy combatant?

Another reason why attaching a label of enemy combatant is important is because Tsarnaev has not, and will not, be given any Miranda Warnings if labeled as an enemy combatant. The Federal Government has invoked an exception to the Miranda rule allowing them to avoid Mirandizing Tsarnaev before questioning.  For more on the Public Safety exemption to Miranda rights, please see the video here.

The argument against the Public Safety exemption is that some are claiming the exemption isn’t legal and/or doesn’t apply in this situation. However, designating Tsarnaev as an enemy combatant would negate any need for Miranda rights as such are not afforded to belligerents.

More on this topic:

• The Great Debate: Boston Bomber Acted as ‘Enemy Combatant,’ by Michael M. Rosen, April 23, 2013, Blogs.Reuters.com
• Tsarneav, Criminal Complaint
• FBI Press Release:  Charges against Tsarnaev

Whether or not Tsarnaev is designated an enemy combatant is a decision to be made by the Executive. While I think some valid arguments have been made, both for and against, labeling Tsarnaev as an enemy combatant, I would point out that there is a difference between someone who unilaterally decides to pick-up a movement and carry it forward on their own (with no real direction), versus someone who is working under the direction (or influence) of some kind of operational chain of command.

For example, I am not completely convinced that a U.S. citizen who suddenly decides, on his own, to carry out certain attacks simply because he/she sympathizes with a particular movement should be labeled as an enemy combatant.  After all, if they have no association with any particular group (other than their own affinity for a group’s cause) then there is no information to be gathered, and they are not part of any structured organization which the U.S. may be at war with.

On the other hand, I am not completely sure how closely related such an individual must be to any operational chain, and how much contact with this organization/operation must they have before they carry out an attack, in order to label them as an enemy combatant.

For example, it is documented that the Tsarnaev brothers vocalized their support for al-Qaeda and islamic jihadist movements.  However, is their vocal support enough to consider them part of the network of terrorists the U.S. is currently fighting overseas in places like Afghanistan?

I would think that such acts, carried out by the Tsarnaev brothers, would need to have been influenced or encouraged by an outside force (however loosely) in order to consider them part of such a group, and thus label them as enemy combatants.

• Note: Under this way of thinking, an islamic jihadist that acts alone without any connection to a group such as al-Qaeda, is simply a terrorist.  However, the same islamic jihadist that carries out his act of destruction due to an outside influence, is an enemy combatant. Of course, the question that we are left with is to define “outside influence.” In the end, a determination of enemy combatant status for those such as the Tsarnaev Brothers will be a highly fact intensive determination.

Another question (that may be best saved for another posting) is how much emphasis should the U.S. put into another countries previous designation of an individual as either an enemy combatant or terrorist?  Could such a designation ever be so prevalent that there is no avoiding the fact that the person in question is an enemy combatant?

The debate on how Tsarnaev will be treated is over and he is officially not going to be treated as an enemy combatant.  However, this should not stop us from evaluating the reasons why we consider some actors as enemy combatants and others as terrorists and/or criminals.