By Naomi LaChance |
It would be illegal, unconstitutional, unnecessary and unsettling to our long-established understandings about the military's limited domestic role to detain an American citizen suspected of committing a crime within the United States as an enemy combatant.
Our laws provide that no American citizen shall be imprisoned or otherwise detained domestically by the U.S. military except pursuant to a clear Act of Congress. This law reflects what we learned as a society from our now infamous internment of over 100,000 Japanese-Americans during World War II – as so-called "enemy combatants" or sympathizers – without any actual proof of disloyalty.
The D.C. Circuit Court Of Appeals has said that Congress authorized the administration to detain as enemy combatants only those who are part of or substantial supporters of al-Qaida, the Taliban, or associated forces. On the evidence that's come to light so far, there is absolutely no basis for maintaining that Dzhokhar Tsarnaev would fall within this category. The idea that he might be treated as an "enemy combatant" seems to be based in large part on his ethnicity and religion rather than anything in our laws, the law of war or our Constitution.
There is certainly no reason in this case to drop our principles. If what we think we know about Tsarnaev turns out to be true, it should be easy enough for the government to amass sufficient evidence to convict him of serious crimes many times over without warping our justice system.
Federal investigators and prosecutors, with local assistance, are showing themselves to be fully capable of handling this case. And they are not unique. There have been over 400 terrorism prosecutions tried by the federal courts since 9/11.
And if, in some future case, we did lack evidence that a particular suspect was involved in a deplorable act, the last thing we should do is to brand that person an enemy combatant before finding out whether there is actually any justification for that judgment. This would be an invitation to dispense with justice for people who happen to be Muslim or foreign-born, something our World War II experience should have taught us is a pernicious practice.
The Obama Administration was right to resist the call to create exceptions to our principles which would not make us any safer, but would make us a less just society.
About Susan Herman President of the ACLU
Jeffrey Rosen Law Professor at George Washington University