Not So Fast

Dzhokhar Tsarnaev has been in custody less than twenty-four hours.  From what has been publicly reported there is very little information about with whom he conspired, other than his late brother, in carrying out the Boston Marathon bombings earlier this week.  It is also apparent, again based on public reports, that he is in no condition to answer questions.  Yet a chorus of politicians and media figures are clamoring for him to be designated an enemy combatant so that he can be held without trial and interrogated without legal representation or even being informed of his constitutional rights.

To me these demands smack of appeasing a vengeful mob rather than the serious dispassionate consideration this issue requires.  The practice of treating captured terrorists as enemy combatants dates back to the Congressional Authorization for the Use of Military Force (AUMF) passed in the wake of the September 11 attacks.  The heart of the AUMF is this statement:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This language takes a certain class of individuals, those involved in planning, authorizing, committing or aiding the September 11 attacks, out of the purview of law enforcement and places them under military jurisdiction.  Consequently, those individuals may be held by the military as prisoners or detainees until such time as hostilities are ended.  Those persons who come into U.S. custody who are not lawful combatants as defined by the Geneva Conventions are not entitled to the protections those Conventions afford to Prisoners of War.

This has placed the detainees taken by the U.S. in a very bleak situation.  This is not a conventional war that will be concluded at some time with an armistice, a peace treaty or a surrender.  There is no readily identifiable end to this war.  There is no apparent means of even tracking its progress.  Basically it will end when Congress decides the Al Qaeda threat has diminished to a point that it no longer merits a military response.  So the detainees, chiefly those at Guantanamo Bay, face a long indefinite imprisonment that may or may not involve a trial at some point.  During their detention they do not enjoy the rights afforded to privileged belligerents.  They wear orange jumpsuits instead of their own clothing; they are housed in cells rather than barracks; they are subject to coercive interrogation and may not fall back on disclosing only name, rank, service number and date of birth.

Nevertheless, if their situation is bleak, it is their own fault.  Al Qaeda started this war.  The United States are merely attempting to apply the normal rules of warfare to a new and very different kind of conflict.

But we must remember that the right and the authority to treat members of Al Qaeda and its affiliates in this fashion derives from Congressional legislation.  Congress alone has the power to declare war.  And although the AUMF never uses those words, it is, in effect, a declaration of war.  The question is: does Dzokhar Tsarnaev come within the application of the AUMF?  I think it's premature to make that determination.

Just because Tsarnaev was apparently motivated by Islamic fanaticism, that doesn't make him associated with the perpetrators of 9/11.  Yes, the Tsarnaev brothers frequented jihadist web sites and posted incendiary videos to YouTube.  But that only proves that they were inspired by the jihadist ideology.  Unless there was two-way communication with Al Qaeda affiliated organizations, it doesn't seem like the case can be made that they come within the purview of the AUMF.  The older brother, Tamerlan, traveled to Russia for six months.  I don't think we can just assume he went to meet and/or train with jihadist forces.  He might have been visiting family.  He might even have gotten training and instruction from Chechen nationalist terrorists and then applied his new found knowledge to advance his own personal jihad.  But even that would not make him an enemy combatant under the AUMF.

So why the rush?  There is probably a certain amount of grandstanding and chest thumping.  People understandably want to throw Tsarnaev into the deepest darkest hole in Gitmo, at least until he can be properly executed.  There may be a certain amount of embarrassment on the part of the Obama administration over getting caught flatfooted and completely unawares by two nobodies.  But we must remain a nation of laws.  If a connection to a larger organization with 9/11 ties can be proven than by all means hand Tsarnaev over to the military.  If, however, these two acted alone, maybe using Islamism to give meaning to a personal sense of failure and despair, then Tsarnaev should be handled by the criminal justice system, just like Tim McVeigh, Eric Rudolph and Ted Kaczynski.