The rush by some to declare the surviving Boston bombing suspect an "enemy combatant," subject to indefinite detention without trial in a civilian court, represents a misunderstanding of the law. Such a declaration would abuse the carefully constructed legal framework built in the aftermath of the Sept. 11 attacks.
The Supreme Court held, in its 2004 Hamdi decision, that "indefinite detention for the purpose of interrogation is not authorized" and that the sole basis for such detention is to prevent a member of a hostile force "from returning to the field of battle and taking up arms once again." For this reason, military detention is permissible only for individuals who are part of a hostile foreign force engaged in attacks against the United States. In 2001, Congress authorized the use of military force and the related use of military detention, and specified that this authority was for use against the countries and organizations that conducted or assisted the 9/11 attacks – meaning the authority applies to al-Qaida, the Taliban and associated forces.
So far, there is no evidence that either of the Boston suspects were associated with al-Qaida or its allies. That means the enemy combatant designation is not legally available at this time, and attempts to apply it would be contrary to our laws.
Our law enforcement officials can effectively interrogate this suspect, gather the information they need to protect the public and prepare to prosecute the suspect in our courts. They have done so dozens of times in the past, and we have every reason to believe they can do so in this case.
The horrific attacks in Boston call for justice, and the road to justice requires adherence to our laws. Failure to do so could jeopardize the prosecution of this suspect and endanger justice for the families of the victims and the communities that also were victims of the atrocity in Boston.
About Carl Levin U.S. Senator from Michigan
Susan Herman President of the ACLU
Jeffrey Rosen Law Professor at George Washington University