Boston Marathon Bombing

The Dubious Argument For Labeling Dzhokhar Tsarnaev an Enemy Combatant

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A handful of Republican legislators, including Rep. Peter King, Sen. John McCain, and Sen. Lindsey Graham, have called for treating Dzhokhar Tsarnaev, who is accused of having bombed the Boston marathon last week along with his now-deceased older brother, as an "enemy combatant." But at this point, it's tough to come up with strong legal justification for doing so.

Last year's Defense Authorization Act says that in order to be legally defined as a combatant, an individual must have either participated in the September 11, 2001 terror attacks or be someone "who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States." 

So far, that doesn't apply to Dzhokhar Tsarnaev. There's some indication that Dzhokhar's older brother, Tamerlan, may have watched what NBC describes as "Islamic extremist videos" on YouTube; playlists suspected to have been created by Tamerlan were found with those videos as well as music videos. But there isn't any evidence yet that the younger brother was an actual member of Al Qaeda or an associated group that is at war with the United States. 

And that's what the law requires in order to detain someone under enemy combatant status — not merely having seen some videos, or working in concert with an older brother who saw some vidoes, but evidence that an individual is a working member of Al Qaeda or affiliated organization. 

Sen. Lindsey Graham seems to recognize that the evidence is not sufficient yet. However, he wants to hold Dzhokhar Tsarnaev as an enemy combatant anyway — not because we already have evidence that Dzhokhar was acting as part of Al Qaeda, but because it's possible that eventually authorities might find some. According to The New York Times, the South Carolina senator "said 30 days of confinement and interrogation as an enemy combatant would be an appropriate amount of time to allow the government to look for evidence that would justify his continued detention under the law of war." 

This worrying argument all but defeats the purpose of having a legal standard for the enemy combatant designation. Sure, Sen. Graham seems to be saying, we don't have legal justification for treating Dzhokhar Tsarnaev as an enemy combatant. But if we treat him as one for long enough, law enforcement might eventually come across evidence that could prove that he is a viable candidate for the combatant designation. That's backwards. If the combatant designation is to have any useful meaning at all, it needs to be used only on individuals who already meet the legal standard, not people who Lindsey Graham thinks might eventually meet that standard sometime in the future, after already having been designated a combatant. 

As Jacob Sullum has repeatedly pointed out, there are serious longstanding problems with the way that enemy combatant status has been used by federal authorities. 

NEXT: George W. Bush Says He Doesn't Feel the Need to Defend Himself

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  1. These guys thought the movie Brazil was a cookbook, didn’t they?

    1. I wouldn’t be surprised to see McCain and Graham pop up wearing one of those off-putting masks that the torturers wore.

  2. A handful of Republican legislators, including Rep. Peter King, Sen. John McCain, and Sen. Lindsey Graham, have called for treating Dzhokhar Tsarnaev, who is accused of having bombed the Boston marathon last week along with his now-deceased older brother, as an “enemy combatant.”

    That’s weird, usually these three are pretty level-headed about this stuff.

  3. If it turns out he posted articles without alt-text, I will be pro “enemy combatant” status.

    1. I must, reluctantly, agree.

  4. What’s the big need to strip him of his citizenship? They’ve got an ability to skip Miranda here to interrogate the guy (and they could do that, anyway, if they’re willing to risk some things not getting in court), and he’ll be easily convicted with the evidence we’re all aware of. How long did it take to try, convict, and execute McVeigh? No one stripped him of his citizenship, and what he did was worse, at least quantity-wise.

  5. He’s a criminal, hold him as such. There’s no such thing as an ‘enemy combatant’ beyond the dangerous delusions of the people in congress and the president’s lackeys.

    1. There is certainly no such thing as a citizen enemy combatant.

  6. There are laws against murder in both the Federal and State level, use them. There is no need for the use of Enemy Combatant laws in this case.

  7. I’m still surprised they took him alive and didn’t execute him on the spot for killing a cop.

    1. Seems like they came pretty close.

      1. Too many witnesses and too many live cameras.

  8. Them guys is horny for facism. It’s not like the criminal case against this kid is anything less than overwhelming.

  9. If he’s an enemy combatant, ship him to Gitmo where he can live out the rest of his days without a trail.

    1. But Obama closed Gitmo!

      1. And he’s a former Constitutional law professor.

        Unfortunately, that means he recognizes that the Constitution is a dead letter.

        1. Being a Constitutional law professor means being able to answer the question “How do I get around the Constitution?”

  10. None of this will matter when he gets tenure as a professor of social work.

  11. “Sentence first; trial afterwards.”

    1. Just like a good Cardassian.

      1. It would be wrong to put the innocent through a trial and the citizens of Cardassia deserve to know justice is being served.

        1. They demand to see the state triumph over evil.

  12. 30 days of confinement and interrogation as an enemy combatant would be an appropriate amount of time to allow the government to look for evidence that would justify his continued detention under the law of war.

    Abraham Lincoln threw habeas corpus out the window, and nobody talks about what an asshole he was.

    1. If you criticize Lincoln in any way then you support slavery.

      Why do you support slavery?

    2. Abraham Lincoln threwsuspended habeas corpus

      The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

      Article 1, Section 9

      Don’t do it, Brooksie.

  13. Just like a good Cardassian.

    The Red Queen was a Cardassian? It all makes sense, now.

    1. Better than a Kardashian.

  14. Well duh, he’s a Muslim. That’s really all Queen Lindsey cares about.

  15. FOX

    *Shakes head in disgust

    God I hate Republicans. Thank god for the judge.

    Judge Andrew Napolitano weighed in on the subject this morning on Fox Business Network, getting into it with host Stuart Varney over the constitutional protections that should be afforded to Tsarnaev.

  16. Finally to the point I have to pull the plug on some FB “friends”. Full, ultimate retard over all this.

    Oh, no nut jobs supporting THIS bullshit. They all agree that it’s…bullshit. Nope – it’s those who then absolutely MUST go on, and point out how it’s “2nd amendment freaks” who “only support one amendment” who want to string up Perp #2, and that such “gun nuts” don’t support any besides gun rights, and blah blah blah I blame Bush.

    They just can’t help themselves. But I can’t take it any more, so buh bye.

    And as for this? Yeah, I’d have an issue with it even if I thought it would get us one bit of useful information. But I don’t think it will do anuthing, and I think the only reason they’re not reading him his rights is because they think they’ve got some exemption that they made up, so “that’s the reason.”

    Which translates to, “because fuck you, that’s why.” FUCK!!

  17. Sen. Lindsey Graham seems to recognize that the evidence is not sufficient yet. However, he wants to hold Dzhokhar Tsarnaev as an enemy combatant anyway ? not because we already have evidence that Dzhokhar was acting as part of Al Qaeda, but because it’s possible that eventually authorities might find some.

    Lindsey Graham is a piece of shit, but he’s a consistent piece of shit. He is consistently shitty.

    The Homeland is the Battlefield

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