Slate: Why Tsarnaev Should Not Be Held As an Enemy Combatant

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Slate's Emily Bazelon argues that the Obama Justice Department is right to ignore calls by Sens. Lindsey Graham and John McCain to hold Dzhokhar Tsarnaev as an "enemy combatant":

None of the evidence so far suggests that Dzhokhar Tsarnaev or his older brother, Tamerlan, are connected to al-Qaida or any group associated with it. To the contrary. Authorities keep stressing that the brothers appear to have acted alone. Yes, Tsarnaev and his brother are Muslims, and at some point they were radicalized, but Congress has never said that we are fighting Muslim extremists everywhere.

It’s also important that the key 2011 provision in which Congress said whom the president can detain “exempts U.S. citizens entirely,” as Benjamin Wittes explained at the time. Similarly the 2009 Military Commission Act—which Graham wrote—states that American citizens may not be tried by military commission.

Graham acknowledged as much in his press release: “As to any future trial, if this suspect is an American citizen he is not subject to military commission trial.” But he says this doesn’t matter for purposes of detention. Here’s his proposal: Throw Dzhokhar Tsarnaev into a military brig for some prolonged period of time, once his wounds heal sufficiently, and then hand him over to military and CIA interrogators, without a lawyer or any of the other rights criminal defendants are entitled to in American courts. Then turn him over to the court system later.

Graham asserts that the courts would go along with this approach, even though it’s not been used before, and Congress hasn’t authorized it. I’d like to think he’s wrong. Graham’s approach also insults the interrogation capabilities of the FBI for no particular reason. And it fails to address what happens if Tsarnaev refuses to answer questions: McCain and Graham are decent enough to say that Tsarnaev “must be humanely treated.”

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