Dzhokhar Tsarnaev: Is He An Enemy Combatant?

On late Monday afternoon, White House Press Secretary Jay Carney formally announced that Dzhokhar Tsarnaev, the 19-year-old suspect involved in the Boston Marathon bombing, would be charged and tried in a civilian court. This statement clarified that, notwithstanding opposition from various members of the GOP, Tsarnaev would not be classified as an "enemy combatant." However, despite its continuing prevalence in the media, a majority of Americans are still unfamiliar with the term "enemy combatant" and its further implications. In order to fully understand the meaning of this expression, it is important to reflect upon the way in which the definition "enemy combatant" has changed over the years, and what this has meant for our justice system.

The term "enemy combatant" originally emerged in the 1942 Supreme Court case Ex Parte Quirin (which upheld the authority of a Military tribunal over German saboteurs on U.S. soil) in order to differentiate between the terms "lawful combatants" and "unlawful combatants." Initially, an enemy combatant was defined as one:

Who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, as familiar examples of belligerents who are generally deemed not to be entitled to status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. 

In recent years, this definition has been changed drastically. Following the terror attacks on September 11, 2001, the Bush administration altered the legal meaning of "enemy combatant." Under this new designation, the enemy combatant was redefined as:

An individual who was part of or supporting the Taliban or Al Qaeda forces or associated forces that are engaged in hostilities against the Untied States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Under this new definition, the rights of unlawful non-state actors (such as suspected members of the Taliban) under habeas corpus were suspended, depriving these prisoners access to the United States' civil justice system. With suspended rights under habeas corpus, detainees could be held for an indefinite period of time with little evidence backing up their incarceration. This was further reasserted by the passage of the Military Commissions Act of 2006, which specifically stated that inmates at Guantanamo were furthermore unable to access protection under the U.S. justice system. Later in Bourmediene v. Bush, it was ruled that the provision of the Military Commissions Act of 2006 was unconstitutional, and detainees were allowed to request protection under habeas corpus given that they file under the title "enemy combatant."

Nevertheless, it soon became clear that the term "enemy combatant" itself was ambiguous in nature. It could easily apply to any non-U.S. citizen who existed even with the slightest ties to a terrorist organization. This inherent vagueness and its applicability to detainees in Guantanamo did not appeal to the discrimination of the American public. As a result, in 2009 the Obama administration signed into law three executive orders formally forsaking the Bush administration's definition of "enemy combatant." In this largely figurative gesture, the Obama administration promised to attempt to create new policies of processing prisoners that fell into line with American judicial values (note: These executive orders also attempted to enforce the closure of Guantanamo Bay, which still remains open and increasingly problematic four years after the fact).

So what does all this have to do with Dzhokhar Tsarnaev and U.S. foreign policy today? While Tsarnaev (as a United States citizen and thus far unaffiliated with the Taliban or any other extremist terrorist organizations) is clearly outside the parameters of the former Bush administration's definition of an "enemy combatant," why were some individuals in government so ready to condemn him under similar standards? While I am in no way arguing for legislative leniency toward Tsarnaev (nothing would make me happier than seeing him punished to the full extent of the law), I am troubled by the willingness of some to fall back upon such a convenient prior loophole in our justice system. As a hegemonic power with an incredible amount of international influence, the rest of the world looks to the United States and judges the legitimacy of our actions. If we wish to render any validity to our justice system and penal codes, we must stop bending the rules and creating excuses, which kowtow to our transnational agendas. In other words, if we every wish to obtain global recognition for our jurisdictive authenticity, the phrase "enemy combatant" and its wider implications should have no place in U.S. foreign (and domestic) policy.