The alleged Boston bomber is talking. So far, both what he’s saying and the fact he’s saying it underscore that the government made the right decision in charging him as a criminal in a U.S. federal court, rather than designating him an “enemy combatant” in military custody.
Dzhokhar Tsarnaev has been charged with using weapons of mass destruction, a charge that could land him the death penalty. He’s reportedly told investigators that he and his brother acted on their own, without any instructions from al Qaeda, and that the attack was motivated by a desire to “defend Islam.”
The strength of the evidence (he was caught on video laying his backpack down at the site of the bombing) and the severity of the potential penalty haven’t stopped critics of the Obama administration from claiming he should have been designated and detained as an enemy combatant, though. That’s because according to Senator Lindsey Graham (R-S.C.) the United States is engaged in a war that reaches from the highlands of Afghanistan to the streets of downtown Boston. Therefore we ought to be treating our self-proclaimed enemies accordingly.
Even if one could concoct a legal justification for treating Tsarnaev as an “enemy combatant,” as Graham and others insist is proper, as a practical matter it is a terrible idea.
There is no evidence so far suggesting Tsarnaev and his brother were working with al Qaeda, the Taliban or any of the “associated forces” that Washington says we’re at war with. So there’s no legal basis for treating him as an enemy combatant. That status is reserved for members of armed groups with which we’re actually at war. Proclaiming oneself at war with the United States based on some twisted ideology and imagined battleground doesn’t legally qualify.
What’s more, Tsarnaev is a U.S. citizen. Any attempt to detain him as an enemy combatant would face strong constitutional challenge.
Calling a 19-year-old American, who was allegedly inspired online to engage in militant jihad, an “enemy combatant” is precisely the wrong approach. It buys into his twisted and dangerous view that the United States is at war with all Muslims and that only by attacking Americans can he serve Allah.
This is an absurd belief, of course, unsupported by any rational reading of Islamic tenets. But charging Tsarnaev as an enemy combatant would lend credibility to his world view – elevating his status in a way that could be a lethal motivation for others.
Judge William Young, who sentenced the “shoe bomber,” Richard Reid, in 2002, faced similar pressures. His words still resonate: “You are not an enemy combatant,” he said to Reid in a Boston federal court. “You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature.”
Reid, like Tsarnaev, was a self-proclaimed enemy of the United States who said he tried to kill Americans in “allegiance to Islam.” To treat such men as enemy combatants is to confirm their view of a global religious war. And terrorists aren’t the only ones who hold that extremely dangerous view.
Consider what Tsarnaev’s mother said to a reporter on Tuesday. Zubeidt Tsarnaev, who lives in the Russian Republic of Dagestan, maintains her sons’ innocence and told CNN that she believes they were framed by U.S. authorities because they were Muslim. “They were being killed just because they were Muslim,” she said. “Nothing else.”
She’s surely not the only one who believes that.
Still, some lawmakers and commentators continue to insist that alleged terrorists like Tsarnaev should be treated as enemy combatants. The assumption seems to be that by denying them the rights afforded in the U.S. criminal justice system – namely, the rights to remain silent and to an attorney – will make them more likely to provide valuable information to U.S. authorities. “Naming him an enemy combatant would be useful,” the Wall Street Journal claimed, because the “designation allows for extensive, long-term interrogation without a lawyer.”
There is no support, however, for the claim that long-term interrogation without a lawyer helps anyone.
First, the FBI can invoke a “public safety exception” that allows agents to question a suspect about impending threats before reading him his rights. But after that initial questioning, accused terrorists usually continue to cooperate with authorities and provide valuable information – even after they’re told they can remain silent and have the assistance of counsel. Indeed, it’s often their lawyers who convince them to do that.
As David Kris, former head of the Justice Department’s National Security Division, explained after leaving office: “The reality is that when sophisticated defense attorneys determine that the government has strong, admissible evidence to support a conviction and lengthy sentence, they will often encourage their clients to cooperate. In this sense, defense lawyers can be very helpful.”
They know, Kris explained, that suspects charged with terrorism are almost always convicted and face long prison sentences. “This creates powerful incentives to work within the system – to cooperate and obtain a somewhat shorter sentence or improved conditions of confinement – rather than to challenge the system.”
This is what’s happened in recent major cases. Faisal Shahzad, the Times Square bombing suspect, for example, was initially questioned without a lawyer or Miranda warnings under the public safety exception and provided what the FBI called “valuable intelligence and evidence.” After he was read his rights, he continued to do more of the same. Within a month, after explaining exactly where and from whom he’d received explosives training, he’d confessed to 10 felonies.
Najibullah Zazi, the Denver airport shuttle bus driver who confessed to leading a plot to attack the New York City subway system, also gave investigators valuable information about others involved in the plan, their training, motives and ties to an al Qaeda recruiter. So did the Detroit “underwear bomber” Umar Farouk Adbulmutallab – after he was advised of his right to remain silent and his right to an attorney. The list goes on.
Indeed, since the September 11 terrorist attacks, federal law enforcement has successfully prosecuted nearly 500 terrorism-related cases, often based on information received from cooperating defendants. The military commissions prosecuting alleged enemy combatants in Guantanamo Bay, on the other hand, have completed only seven cases. Two of those convictions have been reversed on appeal.
The assumption that imprisoning a suspect indefinitely as an enemy combatant will prevent the next attack has no basis. Indeed, the United States continues to hold 166 prisoners at Guantanamo Bay. That didn’t prevent this attack. It may have inspired it. At the very least, it probably fueled the older brother’s suspicions that the U.S. government is at war with the Muslim world.
So far, Dzokhar has reportedly acknowledged his role in the bombings that killed three people and injured more than 250 others. He’s said that the brothers were operating on their own, without help from al Qaeda or any other overseas terrorist organizations. The FBI will certainly investigate those claims and see if any evidence suggests otherwise.
But now is the time to commend federal law enforcement for its handling of this case and to support its continued investigation. This is not the time to derail the case by diverting it to a system that has repeatedly failed elsewhere.
Critics should be careful what they wish for.
