On Monday, the Justice Department announced that it would try the surviving Boston Marathon bomber in civilian court, rejecting calls for the military to hold him as an enemy combatant. That's probably the right move, but the Feds may have jumped the gun by filing charges before Dzhokhar Tsarnaev could be thoroughly questioned.
What's most important now is collecting intelligence to prevent future attacks. Were the Tsarnaev brothers planning more bloodshed? Were they working alone or as part of a larger cell? Were they directed or influenced by radicals overseas? Who taught them to make bombs out of pressure cookers? Was Tamerlan Tsarnaev trained by militants during a trip abroad in 2011?
Military interrogation is an effective way to get answers to these questions. And the Supreme Court has held that the military can detain those who fight for the enemy – even if, like Dzhokhar, they're citizens who were arrested in this country.
In World War II, the Court unanimously blessed Franklin Roosevelt's decision to transfer eight Nazi saboteurs, including an American, to military custody after they were captured by the FBI. Federal courts likewise upheld the military detention of two citizens suspected of being al Qaeda operatives, including one arrested in Chicago.
But based on what we know today, Dzhokhar Tsarnaev shouldn't be held by the military. There's no evidence he's affiliated with al-Qaida or any other foreign terrorist group.
Fortunately, authorities can interrogate him within the criminal justice system. In New York v. Quarles, the Supreme Court held that police may question a suspect – without Miranda warnings and without a lawyer – if there are immediate public safety concerns.
The government deserves credit for using its "high-value detainee interrogation group" to question Dzhokhar. But now that he's been charged, read his rights and given a lawyer, meaningful interrogation is probably over.
Maybe officials already extracted all the information they could get, though that seems unlikely. Or maybe they ended the questioning early to get the criminal proceedings underway. If it's the latter, our critical intelligence needs will have taken a back seat to the prosecution.
Dzhokhar Tsarnaev may not be an enemy soldier, but he's not a common criminal, either. The proper place for him is a civilian court, but authorities should have interrogated him more fully to help thwart future atrocities.
About Nathan Sales Law Professor at George Mason University School of Law
Susan Herman President of the ACLU
Jeffrey Rosen Law Professor at George Washington University