Senator Lindsay Graham's. R-S.C., suggestion that the Boston bombing suspect should be interrogated as an enemy combatant because of his ties to Chechnya and "radical Islamic" thought is legally and constitutionally unconvincing.
The designation "enemy combatant" has its genesis in the Supreme Court's 1942 Quirin case, which held that "those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission." In other words, enemy combatants have to be fighting on behalf of an enemy state or another organization at war with the U.S.
But despite Graham's suggestion, there's no evidence linking Dzhoskhar Tsarnaev to alQaida or the Taliban,the organizations against which Congress has authorized the president to fight. On the contrary, Tsarnaev told investigators that he and his brother were not acting on behalf of any terrorist groups, but instead were motivated by their own extremist beliefs.
Even if Tsarnaev had admitting to acting on behalf of alQaida, it's still not clear that the Supreme Court would uphold his designation as an enemy combatant. The Court hasn't yet decided whether an American citizen captured on American soil can be held and interrogated as an enemy combatant.
In the Hamdi case, Justice Sandra Day O'Connor, wrote that an American citizen captured carrying a weapon in Afghanistan could be designated an enemy combatant, but she stressed the holding was limiting to the "narrow circumstances" of that case. And in the Padilla case, where a suspected dirty bomber was seized in Chicago, the Bush administration transferred the American citizen to civilian courts before the Supreme Court could rule on the legality of his detention. In that case however, Justice John Paul Stevens emphasized in dissent that "Executive detention of subversive citizens" can't be justified "by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure."
Graham, of course didn't advocate incommunicado detention for months on end: He suggested that Tsarnaev could be detained without charge and interrogated as an enemy combatant for thirty days before being transferred to the criminal justice system. But the thirty day limit appears in no law or statute – Graham simply invented it.
Moreover, the fact that even Graham acknowledges that Tsarnaev, as an American citizen, could not be tried by a military commission shows the precariousness of his constitutional status. The idea that a citizen could be interrogated as a combatant and then tried as a criminal, all on a timetable set by the executive, shows how jerry-rigged the designation of Tsarnaev as a combatant would be.
The truth is that all of the efforts to cut corners with Tsarnaev's constitutional rights have proved ill-advised. The administration interrogated him without reading his Miranda rights, invoking a novel and expansive "public safety" exception to Miranda that the Supreme Court has yet to recognize. But Tsarnaev seemed all too willing to acknowledge his guilt, and there's no reason to believe he would have provided any less intelligence if he had been read his rights before questioning began. By trying to invent new legal categories, both Graham and the Obama administration have unnecessarily complicated the prosecution of Tsarnaev – as well as cut corners with the Constitution.
About Jeffrey Rosen Law Professor at George Washington University
Susan Herman President of the ACLU