Dzhokhar Tsarnaev: He Will Not Be Charged As An Enemy Combatant, and That's a Good Thing

As the horrific Boston bombings reignite debate regarding U.S. counter-terror methods — debate recently compounded by revelations of sweeping governmental surveillance via the clandestine PRISM program — the Obama administration indicated surviving suspect Dzhokhar Tsarnaev will be tried in the civilian court system, not as a putative enemy combatant. While legal experts agree that designating Tsarnaev an enemy combatant would be illogical, the decision nevertheless angered congressional Republicans, namely reliable hawks Sen. John McCain (R-Ariz.), Sen. Lindsey Graham (R-S.C.), Sen. Kelly Ayotte (R-N.H.), and Rep. Peter King (R-N.Y.), who questioned the efficacy of trying Tsarnaev in the civilian justice system and even opposed reading him his Miranda rights. Interestingly, while the federal government initially opted not to read him his Miranda rights, citing the public safety exception derived from New York v. Quarles (1984), he was eventually Mirandized at his initial hearing.

Theoretically, Tsarnaev and his deceased brother, Tamerlan, qualify as terrorists and merit designation as enemy combatants. But many controversies surrounding the War on Terror involve labels and definitions. Post-9/11 acts of violence are interpreted differently than similar or worse attacks pre-9/11. The challenge in distinguishing the Tsarnaevs from Osama bin Laden, from Ted Kaczynski, or from James Eagan Holmes is a tricky one, often involving controversial considerations of citizenship, religion, ethnicity, ideology, and the sheer scale of resultant violence. Thus, despite Tsarnaev's heinous actions and the justifiable concerns certain lawmakers are expressing, that Tsarnaev will not be tried as an enemy combatant is ultimately a good thing.

Lawmakers have expanded the definition of "enemy combatant" remarkably over the last decade — a foreseeable consequence of the Authorization for Use of Military Force (AUMF), a joint resolution of Congress that granted then-President George W. Bush expanded warmaking powers in the aftermath of the 9/11 terrorist attacks. It provides, in part, that:

"the 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" (Pub. L. 107-40, §2(a), emphasis added).

One of the earliest legal controversies post-9/11 was Hamdi v. Rumsfeld (2004), an instructive case involving Yaser Esam Hamdi, a Louisiana-born U.S. citizen captured in Afghanistan. Claiming Hamdi was assisting the Taliban, U.S. forces detained him in Guantanamo Bay, Cuba, and later, after learning of his citizenship, in military facilities in Virginia and South Carolina. The Bush Administration claimed Hamdi was an enemy combatant and therefore not entitled traditional due process protections. Hamdi's father brought suit on his son's behalf and the case eventually made its way to the Supreme Court.

In an 8-1 decision, the Court mandated that the U.S. government did not have the power to detain a U.S. citizen indefinitely — ostensibly a victory for civil libertarians. However, the Court did not embrace full due process in this particular instance. Displaying its customary deference to the executive branch for matters involving foreign affairs and warmaking, the Court stated Hamdi was entitled some legal protections, including proper notice of charges, but permitted the government to eschew certain procedural protections, such as the burden of proof limitation, due to the uncertain nature of continuing military conflict. (Justice Thomas was the only justice to side entirely with the executive.)

In short, the AUMF affords the president broad discretion in determining who qualifies as an enemy combatant and subsequent judicial decisions severely checked traditional notions of due process. Luckily, the Obama administration has all but abandoned the neocon interpretation of enemy combatants — a welcome respite for civil libertarians suffering from 8 years of Bush II's heavy-handed assaults and renewed bipartisan affronts that, if not blatantly Orwellian, at the very least lack a transparent and efficacious procedural oversight scheme befitting a former constitutional scholar.

Let us not forget that the due process enshrined in our Constitution's Fifth and Fourteenth Amendments exists for several purposes: protecting the innocent who unfortunately become embroiled in the justice system; providing a series of mechanisms that afford the accused their inalienable rights; and, perhaps most importantly, to demonstrate to men and women as terrible as Dzhokhar Tsarnaev that no matter how evil one's actions or deplorable one's ideology the American system will still recognize certain rights and protections. Anything less would contradict our founding principles; would, in many respects, validate the hate reprehensible terrorists and criminals espouse.

Dzhokhar Tsarnaev must atone for his crimes. But we cannot let our zeal for retribution outweigh or erode our commitment to true justice.